CO-OPERATIVES BILL 2006

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This is a Bill, not an Act. For current law, see the Acts databases.

CO-OPERATIVES BILL 2006

Western Australia DRAFT BILL FOR PUBLIC COMMENT The Government proposes to provide a legislative framework for the formation, registration and management of co-operatives and for related purposes. This draft Bill has been prepared for public comment but it does not necessarily represent the Government's settled position. Co-operatives Bill 2006 CONTENTS Part 1 -- Preliminary Division 1 -- Introductory 1. Short title 2 2. Commencement 2 3. Objects of this Act 2 4. Terms used in this Act 3 Division 2 -- Qualified privilege 5. Qualified privilege 8 Division 3 -- The co-operative principles 6. Co-operative principles 8 7. Interpretation to promote co-operative principles 10 Division 4 -- Application of Corporations Act to co-operatives 8. Definitions 10 160--1 page i

Co-operatives Bill 2006 Contents 9. Excluded matter 11 10. Applying the Corporations legislation to co-operatives 13 11. Modifications to applied provisions 14 Part 2 -- Formation Division 1 -- Types of co-operatives 12. Types of co-operatives 15 13. Trading co-operatives 15 14. Non-trading co-operatives 15 Division 2 -- Formation meeting 15. Formation meeting 16 Division 3 -- Approval of disclosure statement and rules 16. Approval of disclosure statement 17 17. Approval of rules 19 Division 4 -- Registration of proposed co-operative 18. Application for registration of proposed co-operative 20 19. Registration of co-operative 22 20. Incorporation and certificate of registration 22 Division 5 -- Registration of an existing corporation 21. Existing corporation can be registered 23 22. Formation meeting and transitional provision 23 23. Application for registration 24 24. Requirements for registration 25 25. Transitional provision 26 26. Certificate of registration 26 27. Effect of registration 26 Division 6 -- Conversion of co-operative 28. Conversion of co-operative 27 Division 7 -- Reviews 29. Appeal against refusal to approve disclosure statement 27 30. Appeal against refusal to approve draft rules 27 31. Appeal against refusal to register 27 page ii [Draft Bill for public comment]

Co-operatives Bill 2006 Contents 32. Supreme Court's powers on appeal 28 Division 8 -- General 33. Acceptance of money by proposed co-operative 28 34. Issue of duplicate certificate 28 Part 3 -- Legal capacity and powers Division 1 -- General powers 35. Effect of incorporation 29 36. Power to form companies and enter into joint ventures 29 Division 2 -- Doctrine of ultra vires abolished 37. Interpretation 29 38. Doctrine of ultra vires abolished 30 39. Legal capacity 30 40. Restrictions on co-operatives in rules 31 41. Results of contravention of restriction in rules 32 Division 3 -- Persons having dealings with co-operatives 42. Assumptions entitled to be made 33 43. Assumptions 33 44. Person who knows or ought to know is not entitled to make assumptions 34 45. Lodgment of documents not to constitute constructive knowledge 35 46. Effect of fraud 35 Division 4 -- Authentication and execution of documents and confirmation of contracts 47. Common seal 36 48. Official seal 36 49. Authentication need not be under seal 36 50. Co-operative may authorise person to execute deed 36 51. Execution under seal 37 52. Contractual formalities 37 53. Other requirements as to consent or sanction not affected 38 Division 5 -- Pre-registration contracts 54. Contracts before registration 38 page iii [Draft Bill for public comment]

Co-operatives Bill 2006 Contents 55. Person may be released from liability but is not entitled to indemnity 39 56. This Division replaces other rights and liabilities 40 Part 4 -- Membership Division 1 -- General 57. Becoming a member 41 58. Members of co-operative group 41 59. Qualification for membership and transitional provision 42 60. Membership may be joint 42 61. Members under 18 years of age 43 62. Representatives of corporations 43 63. Notification of shareholders and shareholdings 43 64. Circumstances in which membership ceases -- all co-operatives 44 65. Additional circumstances in which membership ceases --co-operatives with share capital 45 66. Carrying on business with too few members 45 Division 2 -- Rights and liabilities of members 67. Rights of membership not exercisable until registered etc. 46 68. Liability of members to co-operative 46 69. Co-operative to make information available to person intending to become a member 47 70. Entry fees and regular subscriptions 47 71. Members etc. may be required to deal with co-operative 48 72. Fines payable by members 49 73. Charge and set off of co-operative 49 74. Repayment of shares on expulsion 50 Division 3 -- Death of member 75. Meaning of "interest" 51 76. Transfer of share or interest on death of member 52 77. Transfer of small shareholdings and interests on death 52 78. Value of shares and interests 53 79. Co-operative protected 53 page iv [Draft Bill for public comment]

Co-operatives Bill 2006 Contents Division 4 -- Disputes involving members 80. Grievance procedure 53 81. Application to Supreme Court 54 Division 5 -- Oppressive conduct of affairs 82. Interpretation 54 83. Application of Division 55 84. Who may apply for court order 55 85. Orders that the Supreme Court may make 55 86. Basis on which Supreme Court makes orders 56 87. Winding up need not be ordered if oppressed members prejudiced 57 88. Application of winding up provisions 57 89. Changes to rules 57 90. Copy of order to be lodged with Registrar 58 Division 6 -- Proceedings on behalf of a co-operative by members and others 91. Bringing, or intervening in, proceedings on behalf of a co-operative 58 92. Applying for and granting leave 59 93. Substitution of another person for the person granted leave 59 94. Effect of ratification by members 60 95. Leave to discontinue, compromise or settle proceedings brought, or intervened in, with leave 61 96. General powers of the Supreme Court 61 97. Power of Supreme Court to make costs order 62 Part 5 -- Rules 98. Effect of rules 63 99. Content of rules 63 100. Purchase and inspection of copy of rules 64 101. False copies of rules 64 102. Model rules 64 103. Rules can only be altered in accordance with this Act 65 104. Approval of alteration of rules 65 105. Alteration by special resolution 66 106. Alteration by resolution of board 66 107. Alteration does not take effect until registered 67 page v [Draft Bill for public comment]

Co-operatives Bill 2006 Contents 108. Appeal against refusal to approve alteration 67 109. Appeal against refusal to register 67 110. Supreme Court's powers on appeal 67 Part 6 -- Active membership Division 1 -- Definitions 111. Meaning of "active membership resolution" 68 112. What is active membership 68 113. What are active membership provisions and resolutions 68 Division 2 -- Rules to contain active membership provisions 114. Number of primary activities required 69 115. Rules to contain active membership provisions 69 116. Factors and considerations for determining primary activities etc. 69 117. Active membership provisions -- trading co-operatives 70 118. Regular subscription -- active membership of non-trading co-operative 70 Division 3 -- Active membership resolutions 119. Notice of meeting 71 120. Eligibility to vote on active membership resolution 71 121. Eligibility of directors to vote on proposal at board meeting 72 122. Other entitlements of members not affected 72 Division 4 -- Cancellation of membership of inactive or missing members 123. Cancellation of membership of inactive or missing member and transitional provision 72 124. Share to be forfeited if membership cancelled 73 125. Failure to cancel membership -- offence by director 74 126. Deferral of forfeiture by board 74 127. Cancellation of membership prohibited in certain circumstances 75 128. Notice of intention to cancel membership 75 129. Order of Supreme Court against cancellation 76 page vi [Draft Bill for public comment]

Co-operatives Bill 2006 Contents 130. Repayment of amounts due because of cancelled membership 76 131. Interest on deposits, debentures and co-operative capital units 78 132. Repayment of deposits, and redemption of debentures and co-operative capital units 79 133. Register of cancelled memberships 80 Division 5 -- Entitlements of former members of trading co-operatives 134. Application of Division 80 135. Former shareholders to be taken to be shareholders for certain purposes 80 136. Entitlements of former shareholders on mergers etc. 81 137. Set off of amounts repaid etc. on forfeited shares 82 138. Entitlement to distribution from reserves 83 139. Regulations may exempt co-operatives from provisions 84 Part 7 -- Shares Division 1 -- Nature of share 140. Nature of share in co-operative 85 Division 2 -- Disclosure 141. Disclosure to intending shareholders in trading co-operative 85 142. Content of disclosure statement to intending shareholders 86 143. Exemptions for disclosure statements 87 Division 3 -- Issues of shares 144. Shares -- general 87 145. Application of Corporations Act for particular share subscriptions 88 146. Minimum paid up amount 88 147. Shares not to be issued at a discount 89 148. Issue of shares at a premium 89 149. Joint ownership of shares 90 150. Members may be required to take up additional shares 90 151. Bonus share issues 91 page vii [Draft Bill for public comment]

Co-operatives Bill 2006 Contents 152. Restrictions on bonus shares 91 153. Notice about bonus shares 92 Division 4 -- Beneficial and non-beneficial interest in shares 154. Direction to disclose 93 155. Disclosure by member of relevant interests and instructions 93 156. Registration as trustee etc. on death of owner of shares 94 157. Registration as administrator of estate on incapacity of shareholder 95 158. Registration as Official Trustee in Bankruptcy 95 159. Liabilities of person registered as trustee or administrator 96 160. Notice of trusts in register of members 96 161. No notice of trust except as provided by this Division 96 Division 5 -- Sale or transfer of shares 162. Sale or transfer of shares 96 163. Transfer on death of member 97 164. Restriction on total shareholding 97 165. Transfer not effective until registered 98 166. Non-members become members on registration 98 Division 6 -- Repurchase of shares 167. Purchase and repayment of shares 98 168. Deposit, debentures or co-operative capital units instead of payment when share repurchased 99 169. Cancellation of shares 101 Part 8 -- Voting and meetings Division 1 -- Voting entitlements 170. Application of Part to voting 102 171. Voting 102 172. Voting by proxy 102 173. Inactive members not entitled to vote and transitional provision 103 174. Control of the right to vote 103 175. Effect of disposal of shares on voting rights 103 page viii [Draft Bill for public comment]

Co-operatives Bill 2006 Contents 176. Effect of relevant share and voting interests on voting rights 104 177. Rights of representatives 104 178. Other rights and duties of members not affected by ineligibility to vote 104 179. Vote of disentitled member to be disregarded 104 Division 2 -- Resolutions 180. Decisions to be by ordinary resolution 105 181. Ordinary resolutions 105 182. Special resolutions 105 183. How majority obtained is ascertained 106 184. Declaration of passing of special resolution 106 185. Effect of special resolution 106 186. Lodgment of special resolution 106 187. Decision of Registrar on application to register special resolution 107 Division 3 -- Resolution by circulated document 188. Application of Division 3 108 189. Resolution by circulation of document -- fewer than 50 members 108 Division 4 -- Postal ballots 190. Postal ballots 109 191. Special postal ballots 110 192. When a special postal ballot required 111 193. Holding of postal ballot on requisition and transitional provision 111 194. Expenses involved in postal ballots on requisition 112 Division 5 -- Meetings 195. Annual general meetings 113 196. Special general meetings 113 197. Notice of meetings 113 198. Quorum at meetings 114 199. Decision at meetings 114 200. Calling of general meeting on requisition and transitional provision 114 201. Minutes 116 page ix [Draft Bill for public comment]

Co-operatives Bill 2006 Contents Part 9 -- Management and administration of co-operatives Division 1 -- The Board 202. Board of directors 117 203. Election of directors 117 204. Qualification of directors 118 205. Disqualified persons 119 206. Meeting of the board of directors 121 207. Transaction of business outside meetings 122 208. Deputy directors 122 209. Delegation by board 123 210. Removal from and vacation of office 123 Division 2 -- Secretary 211. Secretary 124 Division 3 -- Duties and liabilities of directors, officers and employees 212. Meaning of "officer" 124 213. Officers must act honestly 125 214. Standard of care and diligence required 126 215. Improper use of information or position 126 216. Recovery of damages by co-operative 127 217. Other duties and liabilities not affected 127 218. Application of Corporations Act concerning indemnities and insurance for officers and auditors 127 219. Application of Corporations Act provisions concerning officers of co-operatives 128 Division 4 -- Restrictions on directors and officers 220. Directors' remuneration 128 221. Certain financial accommodation to officers prohibited 129 222. Financial accommodation to directors and associates 129 223. Restriction on directors of certain co-operatives selling land to co-operative 132 224. Management contracts 132 page x [Draft Bill for public comment]

Co-operatives Bill 2006 Contents Division 5 -- Declaration of interests 225. Declaration of interest 133 226. Declarations to be recorded in minutes 135 227. Division does not affect other laws or rules 135 228. Certain interests need not be declared 135 Division 6 -- Financial reports and audit 229. Meaning of "control" and "entity" 136 230. Requirements for financial records and financial reports 136 231. Power of Registrar to grant exemptions 138 232. Disclosure by directors 138 233. Protection of auditors etc. 138 234. Financial year 139 Division 7 -- Registers, records and returns 235. Registers to be kept by co-operatives 139 236. Location of registers 140 237. Inspection of registers etc. 141 238. Use of information on registers 142 239. Notice of appointment etc. of directors and officers 143 240. Annual report to be lodged with Registrar 144 241. List of members to be provided at request of Registrar 145 242. Special return to be given at request of Registrar 145 Division 8 -- Name and registered office 243. Name to include certain matter 145 244. Use of abbreviations 146 245. Name to appear on business documents etc. 146 246. Change of name of co-operative 147 247. Restriction on use of word "co-operative" or similar words 148 248. Registered office of co-operative 148 Part 10 -- Funds and property Division 1 -- Power to raise money 249. Meaning of obtaining financial accommodation 149 250. Fund raising to be in accordance with Act and regulations 149 251. Limits on deposit taking 149 page xi [Draft Bill for public comment]

Co-operatives Bill 2006 Contents 252. Members etc. not required to see to application of money 149 253. Registrar's directions about fundraising 150 254. Subordinated debt 150 255. Application of Corporations Act to issues of debentures 151 256. Application of Corporations to particular issues of debentures 152 257. Disclosure statement 153 258. Approval of board for transfer of debentures 153 259. Application of Corporations Act -- reissue of redeemed debentures 154 260. Compulsory loan by member to co-operative 154 261. Interest payable on compulsory loan 155 Division 2 -- Co-operative capital units 262. General nature of co-operative capital units 156 263. Priority of CCU's on winding up 157 264. Financial accommodation provisions apply to issue of CCUs 157 265. CCUs to be issued to non-members 158 266. Minimum requirements for rules concerning CCUs 158 267. CCUs not to be issued unless terms of issue approved by Registrar 158 268. Directors' duties concerning CCUs 159 269. Redemption of CCUs 160 270. Capital redemption reserve 160 271. Issue of shares in substitution for redemption 161 Division 3 -- Charges 272. Registration of charges 161 Division 4 -- Receivers and other controllers of property of co-operatives 273. Receivers and other controllers of property of co-operatives 161 Division 5 -- Disposal of surplus from activities 274. Retention of surplus for benefit of co-operative 162 275. Application for charitable purposes or members' purposes 162 276. Distribution of surplus or reserves to members 162 277. Application of surplus to other persons 163 page xii [Draft Bill for public comment]

Co-operatives Bill 2006 Contents Division 6 -- Acquisition and disposal of assets 278. Acquisition and disposal of assets 164 Part 11 -- Restrictions on the acquisition of interests in co-operatives Division 1 -- Restrictions on share and voting interests 279. Application of Part 166 280. Notice required to be given of voting interest 166 281. Notice required to be given of substantial share interest 166 282. Requirements for notices 167 283. Maximum permissible level of share interest 167 284. Transitional provision 168 285. Shares to be forfeited to remedy contravention 168 286. Powers of board in response to suspected contravention 169 287. Powers of Supreme Court in relation to contravention 169 288. Co-operative to notify Registrar of interest over 20% 170 289. Co-operative to keep register 171 290. Unlisted companies to provide list of shareholders etc. 171 291. Excess share interest not to affect loan liability 172 292. Extent of operation of Division 172 293. Registrar may grant exemption from Division 172 Division 2 -- Restrictions on certain share offers 294. Share offers to which Division applies 173 295. Requirements to be satisfied before offer can be made 173 296. Some offers totally prohibited if they discriminate 173 297. Offers to be submitted to board first 174 298. Announcements of proposed takeovers concerning proposed company 174 299. Additional disclosure requirements for offers involving conversion to company 176 page xiii [Draft Bill for public comment]

Co-operatives Bill 2006 Contents 300. Consequences of prohibited offer 176 301. Registrar may grant exemptions 177 Part 12 -- Merger, transfer of engagements, winding up Division 1 -- Mergers and transfers of engagements 302. Application of Division 178 303. Mergers and transfers of engagements of local co-operatives 178 304. Requirements before application can be made 178 305. Disclosure statement required 178 306. Making an application 180 307. Approval of merger 180 308. Approval of transfer of engagements 181 309. Transfer of engagements by direction of Registrar 181 Division 2 -- Transfer of incorporation 310. Application for transfer 182 311. Requirements before application can be made 183 312. Meaning of "new body" and "transfer" 183 313. New body ceases to be registered as co-operative 184 314. Transfer not to impose greater liability etc. 184 315. Effect of new certificate of registration 184 316. New body must give copy of new certificate of registration or incorporation to Registrar 185 317. New body is a continuation of the co-operative 185 Division 3 -- Winding up and deregistration 318. Methods of winding up 185 319. Winding up on Registrar's certificate 185 320. Method of deregistration 186 321. Application of Corporations Act to winding up and deregistration 186 322. Restrictions on voluntary winding up 188 323. Start of members' voluntary winding up 188 324. Distribution of surplus -- non-trading co-operatives 188 325. Liquidator -- vacancy may be filled by Registrar 189 326. Review of liquidator's remuneration 189 page xiv [Draft Bill for public comment]

Co-operatives Bill 2006 Contents 327. Liability of member to contribute in a winding up where shares forfeited etc. 189 Division 4 -- Administration of co-operative -- application of Corporations Act 328. Application of Corporations Act to administration of co-operative 190 Division 5 -- Appointment of administrator 329. Appointment of administrator 191 330. Effect of appointment of administrator 191 331. Revocation of appointment 192 332. Expenses of administration 193 333. Liabilities arising from administration 193 334. Additional powers of Registrar 194 335. Stay of proceedings 195 336. Administrator to report to Registrar 195 Division 6 -- Effect of merger etc. on property, liabilities etc. 337. How this Division applies to a merger 195 338. How this Division applies to a transfer of engagements 196 339. How this Division applies to a transfer of incorporation 196 340. Effect of merger etc. on property, liabilities etc. 196 Division 7 -- Miscellaneous 341. Grounds for winding up, transfer of engagements, appointment of administrator 198 342. Application of Corporations Act for insolvent co-operatives 199 Part 13 -- Arrangements and reconstructions Division 1 -- General requirements 343. Requirements for binding compromise or arrangement 200 344. Supreme Court ordered meeting of creditors 201 345. Registrar to be given notice and opportunity to make submissions 201 346. Results of 2 or more meetings 202 page xv [Draft Bill for public comment]

Co-operatives Bill 2006 Contents 347. Persons disqualified from administering compromise etc. 202 348. Application of Schedule 4 to person appointed 203 349. Application of Corporations Act to person appointed 203 350. Copy of order to be attached to rules 203 351. Directors to arrange for reports 204 352. Power of Supreme Court to restrain further proceedings 204 353. Supreme Court need not approve compromise or arrangement takeovers 205 Division 2 -- Explanatory statements 354. Explanatory statement required to accompany notice of meeting etc. 205 355. Requirements for explanatory statement 207 356. Contravention of Division -- offence by co-operative 207 Division 3 -- Facilitating reconstructions and mergers 357. Provisions for facilitating reconstructions and mergers 208 Division 4 -- Acquisition of shares of dissenting shareholders 358. Definitions 210 359. Schemes and contracts to which Division applies 210 360. Acquisition of shares pursuant to notice to dissenting shareholder 210 361. Restrictions when excluded shares exceed 10% 211 362. Remaining shareholders may require acquisition 212 363. Transfer of shares pursuant to compulsory acquisition 213 364. Disposal of consideration for shares compulsorily acquired 214 Division 5 -- Miscellaneous 365. Notification of appointment of scheme manager 215 366. Power of Supreme Court to require reports 215 367. Effect of out-of-jurisdiction compromise or arrangement 216 page xvi [Draft Bill for public comment]

Co-operatives Bill 2006 Contents 368. Jurisdiction to be exercised in harmony with Corporations Act jurisdiction 216 369. Registrar may appear etc. 216 Part 14 -- Mutual recognition Division 1 -- Introductory 370. Definitions 217 371. What constitutes carrying on business 217 372. Co-operatives law 218 373. Excluded matter 219 Division 2 -- Mutual recognition of foreign co-operatives 374. Operation of foreign co-operatives in this State 220 375. Authorisation to carry on business 221 376. Registration under Companies (Co-operative) Act 1943 221 377. Notification to Registrar 221 378. Authorisation notices for participating co-operatives 223 379. Authorisation notices for non-participating co-operatives 223 380. Name of foreign co-operative 223 381. When foreign co-operative not authorised to carry on business 224 382. Withdrawal of authority to carry on business 224 383. Appeals 225 384. Application of Act and regulations to foreign co-operatives 226 Division 3 -- General 385. Name and place of origin to appear on business and other documents 226 386. Supply of information to participating Registrars 227 387. Registrar to be notified of changes 227 388. Cessation of business 227 389. Functions conferred on Registrar under co-operatives law 228 Division 4 -- Winding up of foreign co-operatives in this State 390. Winding up to relate to State activities 228 page xvii [Draft Bill for public comment]

Co-operatives Bill 2006 Contents 391. Supreme Court may order winding up 229 392. Application of Corporations Act to winding up of foreign co-operatives 229 393. Outstanding property of foreign co-operative 230 Division 5 -- Mergers and transfers of engagements 394. Definitions 231 395. Authority for merger or transfer of engagements 231 396. Requirements before application can be made 231 397. Disclosure statement required 233 398. Making an application 234 399. Approval of merger 235 400. Approval of transfer of engagements 236 401. Effect of merger or transfer of engagements 237 402. Division applies instead of certain other provisions of this Act 239 Part 15 -- Supervision and protection of co-operatives Division 1 -- Supervision and protection 403. Definitions 240 404. "Co-operative" includes subsidiaries, foreign co-operatives and co-operative ventures 240 405. Appointment of inspectors 241 406. Registrar and investigators have functions of inspectors 241 407. Inspector's identity card 241 408. Production or display of inspector's identity card 242 409. Powers of inspector 242 410. Inspector's appointment conditions 242 411. Entry of place 243 412. Consent to entry 243 413. Inspectors may require certain persons to appear, answer questions and produce documents 244 414. Powers of inspectors on place entered 245 415. Functions of inspectors in relation to relevant documents 246 416. Protection from incrimination 246 417. Warrants 247 page xviii [Draft Bill for public comment]

Co-operatives Bill 2006 Contents 418. Warrants -- applications made other than in person 248 419. Entry with warrant 249 420. General powers after entering places 250 421. Power to seize evidence 251 422. Receipt for seized things 251 423. Return of seized things 252 424. Power to require name and address 252 425. False or misleading statements 253 426. Power to require production of documents 253 427. False or misleading documents 254 428. Obstruction of inspectors 254 429. Copies or extracts of records to be admitted in evidence 255 430. Privilege 255 Division 2 -- Inquiries 431. Definitions 256 432. Appointment of investigators 257 433. Powers of investigators 258 434. Examination of involved person 259 435. Privilege 259 436. Offences by involved person 260 437. Offences relating to documents 261 438. Record of examination 261 439. Report of investigator 262 440. Proceedings following inquiry 263 441. Admission of investigator's report as evidence 263 442. Costs of inquiry 264 Division 3 -- Prevention of fraud etc. 443. Falsification of records 265 444. Fraud or misappropriation 265 445. Offering or paying commission 265 446. Accepting commission 266 447. False statements in loan application etc. 266 Division 4 -- Miscellaneous powers of the Registrar 448. Application for special meeting or inquiry 267 449. Holding of special meeting 267 450. Expenses of special meeting or inquiry 268 page xix [Draft Bill for public comment]

Co-operatives Bill 2006 Contents 451. Power to hold special inquiry into co-operative 268 452. Special meeting following inquiry 268 453. Information and evidence 268 454. Extension or abridgment of time 269 455. Power of Registrar to intervene in proceedings 269 Part 16 -- Administration of this Act Division 1 -- The Registrar 456. Registrar of Co-operatives 270 457. Deputy Registrar and other staff 270 458. Delegation by Registrar 270 459. Registers to be kept by Registrar 271 460. Keeping of registers 271 461. Disposal of records by Registrar 271 462. Inspection of registers 272 463. Approvals by Registrar 273 464. Lodgment of documents 273 465. Way of lodging 273 466. Power of Registrar to refuse to register or reject documents 274 Division 2 -- Protection from liability 467. Particular persons protected from liability 274 Division 3 -- Evidence 468. Certificate of registration 275 469. Certificate evidence 275 470. Records kept by co-operatives 276 471. Minutes 276 472. Official certificates 277 473. The Registrar and proceedings 277 474. Rules 277 475. Registers 277 Division 4 -- Enforceable undertakings 476. Undertakings following contravention of, or failure to comply with, this Act 278 477. Register of undertakings 278 478. Enforcement orders 279 Part 17 -- Offences and proceedings 479. Offences by officers of co-operatives 281 page xx [Draft Bill for public comment]

Co-operatives Bill 2006 Contents 480. Notice to be given of conviction for offence 281 481. Secrecy 281 482. False or misleading statements 284 483. Further offence for continuing failure to do required act 285 484. Civil remedies 286 485. Injunctions 286 486. Proceedings for offences etc. 288 Part 18 -- General 487. Co-operative ceasing to exist 289 488. Service of documents on co-operative 289 489. Service on member of co-operative 290 490. Reciprocal arrangements 290 491. Translations of documents 291 492. Exemptions may be on conditions 291 493. Approval of forms 291 494. Regulation making power 291 495. Companies (Co-operative) Act 1943 repealed 292 496. Co-operative and Provident Societies Act 1903 repealed 292 497. Transitional and savings provisions 292 498. Consequential amendments 292 Schedule 1 -- Matters for which rules must make provision 1. Requirements for all co-operatives 293 2. Additional matters -- co-operatives with share capital 294 3. Additional matters -- non-trading co-operatives 295 Schedule 2 -- Relevant interests, associates, related bodies Division 1 -- Relevant interests 1. Terminology used in this Schedule 296 2. Basic rules -- relevant interests 296 3. Control of corporation having power in relation to a share 296 page xxi [Draft Bill for public comment]

Co-operatives Bill 2006 Contents 4. Control of 20% of voting power in corporation having power in relation to a share 297 5. Deemed relevant interest in advance of performance of agreement that will give rise to a relevant interest 297 6. Control of corporation having a relevant interest by virtue of clause 5 298 7. Matters not affecting application of Division 298 8. Corporation may have a relevant interest in its own shares 299 9. Exclusions -- money lenders 299 10. Exclusions -- certain trustees 299 11. Exclusions -- instructions to securities dealer to dispose of share 300 12. Exclusions -- honorary proxies 300 13. Exclusions -- holders of prescribed offices 300 14. Prescribed exclusions 300 15. Effect of Schedule 300 16. Relevant interest -- corporation other than co-operative 301 Division 2 -- Associates 17. Effect of Part 301 18. Associates of a corporation 301 19. Matters relating to voting rights 301 20. General 302 21. Exclusions 303 Division 3 -- Related corporations 22. Related corporations 303 Schedule 3 -- Registration etc. of charges Division 1 -- Preliminary 1. Interpretation 304 2. Application to charges referred to in clause 17 305 3. Lodgment of documents 305 Division 2 -- Registration Subdivision 1 -- Charges 4. To which charges does Schedule apply? 305 page xxii [Draft Bill for public comment]

Co-operatives Bill 2006 Contents 5. Excluded charges 306 6. Personal chattels 307 7. Book debts 307 8. Crops or stock 308 9. Deposit of documents of title 308 10. Charges on land or fixtures on land 308 11. What if other property is also charged? 308 12. Effect of failure to lodge or give notice or document 308 Subdivision 2 -- Notice of charge 13. Lodgment of notice of charge and copy of instrument, and transitional provision 309 14. Series of debentures 310 15. Operation of priority provisions in respect of issue of debentures 310 16. Discounts 311 17. Acquisition of property subject to charge 311 Subdivision 3 -- Registration 18. Register of Co-operative Charges 312 19. Registration of documents relating to charge 312 20. Provisional registration if stamp duty not paid 313 21. Provisional registration if required particulars not supplied 314 22. Effect of provisional registration 316 23. What if 2 or more charges relate to the same property? 316 24. Registration of assignment or variation of charge 316 25. Standard time for the purposes of this Subdivision 317 Subdivision 4 -- Certain charges void against liquidator or administrator 26. Definitions 317 27. Certain charges void against liquidator or administrator 317 28. Certain varied charges void against liquidator or administrator 319 29. Supreme Court may extend required period 319 30. Certain later charges void 320 31. Effect of provisions on purchaser in good faith 320 page xxiii [Draft Bill for public comment]

Co-operatives Bill 2006 Contents Subdivision 5 -- Certain charges in favour of persons void 32. Definitions 321 33. Charges in favour of certain persons void in certain cases 322 34. Supreme Court may give leave for enforcement of charge 322 35. Certain transactions excluded 323 Subdivision 6 -- Assignment, variation or satisfaction of charges 36. Assignment and variation of charges 323 37. Satisfaction of, and release of property from, charges 324 Subdivision 7 -- General 38. Lodgment of notices 325 39. Lodgment offences 325 40. Co-operative to keep documents relating to charges 326 41. Co-operative to keep register, and transitional provision 326 42. Certificates 327 43. Power of Supreme Court to rectify register of charges 328 44. Registrar may exempt from compliance with certain requirements of Division 329 Division 3 -- Order of priority Subdivision 1 -- General 45. Definitions 329 46. Priorities of charges 330 Subdivision 2 -- Priority rules 47. General priority rules in relation to registered charges 331 48. General priority rule in relation to unregistered charges 332 49. Special priority rules 332 page xxiv [Draft Bill for public comment]

Co-operatives Bill 2006 Contents Schedule 4 -- Receivers, and other controllers, of property of co-operatives 1. Interpretation 335 2. Application of Schedule 336 3. Persons not to act as receivers 337 4. Supreme Court may declare whether controller is validly acting 337 5. Liability of controller 338 6. Liability of controller under pre-existing agreement about property used by co-operative 339 7. Powers of receiver 340 8. Controller's duty of care in exercising power of sale 343 9. Supreme Court may authorise managing controller to dispose of property despite prior charge 343 10. Receiver's power to carry on co-operative's business during winding up 344 11. Controller's duties in relation to financial institution accounts and financial records 345 12. Managing controller to report within 2 months about co-operative's affairs 346 13. Reports by receiver 347 14. Supervision of controller 348 15. Controller may apply to Supreme Court 349 16. Power of Supreme Court to fix receiver's remuneration 349 17. Controller has qualified privilege in certain cases 350 18. Notification of matters relating to controller 351 19. Statement that receiver appointed or other controller acting 352 20. Officers to report to controller about co-operative's affairs 352 21. Controller may require reports 354 22. Controller may inspect records 355 23. Lodging controller's accounts 356 24. Payment of certain debts, out of property subject to floating charge, in priority to claims under charge 358 25. Enforcement of controller's duty to make returns 359 page xxv [Draft Bill for public comment]

Co-operatives Bill 2006 Contents 26. Supreme Court may remove controller for misconduct 360 27. Supreme Court may remove redundant controller 360 28. Effect of clauses 26 and 27 361 Schedule 5 -- Applied co-operatives provisions 1. Provisions applicable to participating co-operatives 362 2. Provisions applicable to non-participating co-operatives 362 Schedule 6 -- Modifications to Corporations Act 1. Modifications to winding up provisions 364 Schedule 7 -- Transitional and savings provisions Division 1 -- Preliminary 1. Terms used in this Schedule 366 2. Interpretation Act 1984 not affected 366 3. Transitional regulations 366 Division 2 -- Prohibition on registration under former Act 4. Prohibition on registration under Companies (Co-operative) Act 1943 or Co-operative and Provident Societies Act 1903 367 Division 3 -- Transfer to incorporation under this Act 5. Co-operative companies and registered societies to register under this Act 368 6. Decision of Registrar to register co-operative company or registered society 369 Division 4 -- General transitional provisions 7. Special resolutions, applications to the Court and court orders 369 8. Inspections or inquiry 370 9. Acquisition of shares of shareholders dissenting from scheme or contract approved by majority 370 page xxvi [Draft Bill for public comment]

Co-operatives Bill 2006 Contents 10. Transitional provisions about active members 371 Division 5 -- Pending incorporation, reconstruction or winding up 11. Pending incorporation 371 12. Pending reconstruction 372 13. Pending wind up 372 Schedule 8 -- Consequential amendments and repeal Division 1 -- Consequential amendments commencing on registration of Co-operative Bulk Handling Limited 1. Grain Marketing Act 2002 amended 374 2. Local Government Act 1995 amended 374 Division 2 -- Consequential amendments commencing on commencement of this Act 3. Civil Judgments Enforcement Act 2004 amended 375 4. Criminal Property Confiscation Act 2000 amended 375 5. Equal Opportunity Act 1984 amended 376 6. Taxi Act 1994 amended 376 7. Western Australian Treasury Corporation Act 1986 amended 377 Division 3 -- Consequential amendments commencing on repeal of former Acts 8. Civil Judgments Enforcement Act 2004 amended 377 9. Criminal Property Confiscation Act 2000 amended 377 10. Equal Opportunity Act 1984 amended 378 11. Housing Loan Guarantee Act 1957 amended 378 12. Local Government Act 1995 amended 378 13. Taxi Act 1994 amended 379 14. Western Australian Treasury Corporation Act 1986 amended 379 Defined Terms page xxvii [Draft Bill for public comment]

Western Australia LEGISLATIVE ASSEMBLY Co-operatives Bill 2006 A draft for public comment of A Bill for An Act to provide a legislative framework for the formation, registration and management of co-operatives and for related purposes. The Parliament of Western Australia enacts as follows: page 1 [Draft Bill for public comment]

Co-operatives Bill 2006 Part 1 Preliminary Division 1 Introductory s. 1 Part 1 -- Preliminary Division 1 -- Introductory 1. Short title This is the Co-operatives Act 2006. 5 2. Commencement (1) This Act, other than sections 495 and 496, and Schedule 8 Divisions 1 and 3, comes into operation on a day fixed by proclamation. (2) Sections 495 and 496, and Schedule 8 Division 3, come into 10 operation on the last day of the period of 2 years after the day fixed under subsection (1). (3) Schedule 8 Division 1 comes into operation on the day that Co-operative Bulk Handling Limited becomes registered under this Act. 15 3. Objects of this Act The objects of this Act are to -- (a) enable the formation, registration and operation of co-operatives; and (b) promote co-operative philosophy, principles, practices 20 and objectives; and (c) protect the interests of co-operatives, their members and the public in the operations and activities of co-operatives; and (d) ensure that the directors of co-operatives are accountable 25 for their actions and decisions to the members of co-operatives; and (e) encourage and facilitate self-management by co-operatives at all levels; and page 2 [Draft Bill for public comment]

Co-operatives Bill 2006 Preliminary Part 1 Introductory Division 1 s. 4 (f) encourage the development, integration and strengthening of co-operatives at local, regional, national and international levels by supporting and fostering State and national peak organisations and 5 co-operative instrumentalities. 4. Terms used in this Act (1) In this Act -- "active member" has the meaning given to that term in section 112; 10 "active membership provision" has the meaning given to that term in section 113; "agreement" means an agreement, arrangement or understanding -- (a)whether formal or informal or partly formal and 15 partly informal; and (b) whether written or oral or partly written and partly oral; and (c) whether or not having legal or equitable force and whether or not based on legal or equitable rights; 20 "alter", in relation to the rules of a co-operative, includes to add to, substitute or rescind; "associate" has the meaning given to that term in Schedule 2 Division 2; "board" means the board of directors of a co-operative and in 25 circumstances where a person or committee is exercising a power of the board delegated under the rules of a co-operative, includes that person or committee; "co-operative" means a body registered under this Act as a co-operative; 30 "co-operative capital unit" has the meaning given to that term in section 262(1); page 3 [Draft Bill for public comment]

Co-operatives Bill 2006 Part 1 Preliminary Division 1 Introductory s. 4 "co-operative group" means a co-operative that has a membership as described in section 58; "corporation" has the meaning given to that term in the Corporations Act; 5 "Corporations Act" means the Commonwealth Corporations Act 2001; "debenture" means a document issued by a co-operative that evidences or acknowledges indebtedness of the co-operative in respect of money that is or may be 10 deposited with or lent to the co-operative, whether constituting a charge on property of the co-operative or not, and includes a unit of a debenture, except that it does not include -- (a) a cheque, order for the payment of money or bill of 15 exchange; or (b) a promissory note having a face value of not less than $50 000; or (c) any other document of a class that is prescribed by the regulations as exempt from this definition; 20 "deed of arrangement" means a deed of company arrangement in force under the Corporations Act Part 5.3A as that Part applies under this Act or a deed of that type as varied and in force from time to time; "deposit taking co-operative" means a co-operative that is 25 permitted under section 251 to accept money on deposit; "financial records" includes the following -- (a) invoices, receipts, orders for the payment of money, bills of exchange, cheques, promissory notes and vouchers; 30 (b) documents of prime entry; page 4 [Draft Bill for public comment]

Co-operatives Bill 2006 Preliminary Part 1 Introductory Division 1 s. 4 (c) working papers and other documents needed to explain -- (i) the methods by which financial statements are made up; and 5 (ii) adjustments to be made in preparing financial statements; "financial report" means an annual financial report or a half-year financial report prepared under the Corporations Act Chapter 2M; 10 "financial services business" has the meaning given to that term in the Corporations Act section 761A; "financial services licensee" has the meaning given to that term in the Corporations Act section 761A; "financial statements" means annual financial statements 15 under the Corporations Act section 295 or half-year financial statements under applying under the Corporations Act section 303; "foreign co-operative" means a corporation that is registered, incorporated or formed under, or subject to, a law in force 20 outside this State, including outside Australia, that regulates co-operatives or organisations having attributes the same as or similar to co-operatives except that it does not include -- (a) a body incorporated under the Corporations Act or 25 under another law of the Commonwealth; or (b) an authorised deposit-taking institution as defined in the Commonwealth Banking Act 1959 section 5; "inspector" means a person appointed as an inspector under Part 15; 30 "model rules" means the model rules prescribed by the regulations under section 102; "mortgage" includes lien, charge or other security over property; page 5 [Draft Bill for public comment]

Co-operatives Bill 2006 Part 1 Preliminary Division 1 Introductory s. 4 "non-trading co-operative" means a co-operative as described in section 14; "officer", of a co-operative, means -- (a) a director, secretary or employee of the co-operative; 5 or (b) a person who is concerned, or takes part, in the management of the co-operative, whether or not as a director; or (c) a receiver and manager, appointed under a power 10 contained in an instrument, of property of the co-operative; or (d) an administrator of a deed of arrangement executed by the co-operative; or (e) a liquidator or provisional liquidator appointed in a 15 voluntary winding up of the co-operative; or (f) an administrator of the co-operative appointed under -- (i) the Corporations Act Part 5.3A as applying under this Act; or 20 (ii) Part 12 Division 5 of this Act; or (g) a trustee or other person administering a compromise or arrangement made between the co-operative and another person; 25 "primary activity", of a co-operative, means an activity stated in the rules of the co-operative to be a primary activity of the co-operative; "principal executive officer", of a co-operative or a subsidiary of a co-operative, means the principal executive officer of 30 the co-operative or subsidiary for the time being, by whatever name called, and whether or not that officer is a director or the secretary; page 6 [Draft Bill for public comment]

Co-operatives Bill 2006 Preliminary Part 1 Introductory Division 1 s. 4 "records" includes books, financial records, financial statements, minutes, registers, deeds, writings, documents and other sources of information compiled, recorded or stored in written form or on microfilm, or by electronic 5 process, or in any other manner or by any other means; "Registrar" means the Registrar of Co-operatives under section 456; "related corporation" has the meaning given to that term in Schedule 2 Division 3; 10 "relevant interest" in -- (a) a right to vote has the meaning given to that term in Schedule 2 Division 1 clause 2(1); and (b) a share has the meaning given to that term in Schedule 2 Division 1 clause 2(2); 15 "rules", of a co-operative, means the rules of the co-operative for the time being applying under this Act; "seal", of a co-operative, means the common seal or official seal of the co-operative; "share" means share in the share capital of a co-operative; 20 "subsidiary" has the meaning given to that term in the Corporations Act; "surplus", in relation to a co-operative, means the excess of income over expenditure after making proper allowance for taxation expense, for depreciation in value of the property 25 of the co-operative and for future contingencies; "trading co-operative" means a co-operative as described in section 13; "transfer day", for a particular transferred co-operative, means the day on which that co-operative became registered under 30 this Act; "transferred co-operative" means a co-operative that immediately before the commencement of this Act was registered as a co-operative company under the Companies page 7 [Draft Bill for public comment]

Co-operatives Bill 2006 Part 1 Preliminary Division 2 Qualified privilege s. 5 (Co-operative) Act 1943 or as a registered society under the Co-operative and Provident Societies Act 1903. (2) A reference in this Act to the Corporations Act or a provision of the Corporations Act applying under this Act (or a part of this 5 Act) is a reference to that Act or provision to the extent that it is declared to apply to a matter for the purposes of the Corporations (Ancillary Provisions) Act 2001 Part 3 as a law of this State. Division 2 -- Qualified privilege 10 5. Qualified privilege (1) If this Act provides that a person has qualified privilege for an act, matter or thing, the person, in relation to the act, matter or thing -- (a) has qualified privilege in proceedings for defamation; 15 and (b) is not, in the absence of malice on the person's part, liable to an action for defamation at the suit of a person. (2) In subsection (1) -- "malice" includes ill-will to the person concerned or any other 20 improper motive. (3) Neither this section nor a provision of this Act that provides as mentioned in subsection (1) limits or affects any right, privilege or immunity that a person has, apart from this section or such a provision, as a defendant in proceedings, or an action, for 25 defamation. Division 3 -- The co-operative principles 6. Co-operative principles The co-operative principles are the principles set out in the following Table. page 8 [Draft Bill for public comment]

Co-operatives Bill 2006 Preliminary Part 1 The co-operative principles Division 3 s. 6 Table of co-operative principles Principle 1. Voluntary and open membership A co-operative is a voluntary organisation, open to all persons able to use its services and willing to accept the responsibilities of membership, without gender, social, racial, political or religious discrimination. 2. Democratic member control A co-operative is a democratic organisation controlled by its members, who actively participate in setting policies and making decisions. Members serving as elected representatives are accountable to the membership. In co-operatives other than co-operative groups members have equal voting rights (one member, one vote). Co-operative groups are organised in a democratic manner. 3. Member economic participation Members contribute equitably to, and democratically control, the capital of their co-operative. Usually, at least part of that capital is the common property of the co-operative. Usually, members receive limited compensation, if any, for capital subscribed as a condition of membership. Members of a co-operative allocate surplus to be used for any or all of the purposes of -- (a) developing the co-operative, possibly by setting up reserves, at least part of which are indivisible; and (b) benefiting members in proportion to their transactions with the co-operative; and (c) supporting other activities approved by the membership. 4. Autonomy and independence A co-operative is an autonomous, self-help organisation controlled by its members. If a co-operative enters into agreements with other organisations, including governments, or raises capital from external sources, it does so on terms that ensure democratic control by its members and maintain its autonomy. page 9 [Draft Bill for public comment]

Co-operatives Bill 2006 Part 1 Preliminary Division 4 Application of Corporations Act to co-operatives s. 7 Principle 5. Education, training and information A co-operative provides education and training for its members, elected representatives, managers and employees so they can contribute effectively to the development of the co-operative. A co-operative informs the general public, particularly young people and opinion leaders, about the nature and benefits of co-operatives. 6. Co-operation among co-operatives Co-operatives serve their members most effectively and strengthen the co-operative movement by working together through local, national, regional and international structures. 7. Concern for the community Co-operatives, while focusing on member needs, work for the sustainable development of their communities through policies accepted by their members. 7. Interpretation to promote co-operative principles In the interpretation of a provision of this Act, a construction that would promote co-operative principles is to be preferred to a construction that would not promote co-operative principles. 5 Division 4 -- Application of Corporations Act to co-operatives 8. Definitions In this Division -- "company" has the meaning given to that term in the Corporations Act section 9; 10 "Corporations legislation" means the Corporations legislation to which the Corporations Act Part 1.1A applies; "excluded Corporations legislation provision" means any provision of the Corporations legislation that does not apply to co-operatives as a law of the Commonwealth. page 10 [Draft Bill for public comment]

Co-operatives Bill 2006 Preliminary Part 1 Application of Corporations Act to co-operatives Division 4 s. 9 9. Excluded matter (1) A co-operative is declared to be an excluded matter for the purposes of the Corporations Act section 5F in relation to the whole of the Corporations legislation other than to the extent 5 specified in subsection (2). (2) Subsection (1) does not exclude the application of the following provisions of the Corporations legislation to co-operatives to the extent that the provisions would otherwise be applicable to them -- 10 (a) provisions relating to a matter that the regulations provide is not to be excluded from the operation of the Corporations legislation; (b) provisions relating to the role of a co-operative in the formation of a company; 15 (c) provisions relating to the registration of a co-operative as a company under the Corporations Act Chapter 5B; (d) provisions relating to substantial shareholdings, by or involving a co-operative, in a company; (e) provisions conferring or imposing functions on a 20 co-operative as a member, or former member, of a corporation; (f) provisions relating to dealings by a co-operative in financial products of a corporation, other than financial products of the co-operative itself; 25 (g) provisions conferring or imposing functions on a co-operative in its dealings with a corporation, not being dealings in financial products of the co-operative; (h) provisions relating to financial products of a co-operative, other than shares in, co-operative capital 30 units in, debentures of or deposits with a co-operative; (i) provisions relating to financial markets and participants in financial markets; page 11 [Draft Bill for public comment]

Co-operatives Bill 2006 Part 1 Preliminary Division 4 Application of Corporations Act to co-operatives s. 9 (j) provisions relating to financial services licensees whose licence covers dealing in, or providing advice about, financial products; (k) provisions relating to carrying on a financial services 5 business; (l) provisions relating to financial statements, and audits of financial statements, of financial services licensees whose licence covers dealing in, or providing advice about, financial products; 10 (m) provisions relating to clients of financial services licensees whose licence covers dealing in, or providing advice about, financial products; (n) provisions relating to registers of interests in financial products. 15 (3) To remove doubt it is declared that subsection (1) does not operate to exclude the operation of the following provisions of the Corporations Act, except in relation to shares in, co-operative capital units in, debentures of, or deposits with, a co-operative -- 20 (a) Part 1.2A; (b) Chapter 2L; (c) Chapter 6CA; (d) Chapter 6D; (e) Part 7.10. 25 (4) If a co-operative is directed by an order of the Supreme Court under section 85(i) to become registered as a company under the Corporations Act, the provisions referred to in subsection (2)(c) apply to the extent necessary for the co-operative to be registered as a company under Chapter 5B of that Act. page 12 [Draft Bill for public comment]

Co-operatives Bill 2006 Preliminary Part 1 Application of Corporations Act to co-operatives Division 4 s. 10 10. Applying the Corporations legislation to co-operatives (1) The regulations may declare a matter relating to co-operatives to be an applied Corporations legislation matter for the purposes of the Corporations (Ancillary Provisions) Act 2001 Part 3 in 5 relation to any excluded Corporations legislation provision or provisions, with any modifications that are specified in the declaration. (2) Without limiting subsection (1), any such regulations may -- (a) specify modifications to the definitions and other 10 interpretative provisions of the Corporations legislation relevant to any excluded Corporations legislation provision that is the subject of the declaration; and (b) provide for ASIC to exercise a function under any excluded Corporations legislation provision that is the 15 subject of the declaration, but only if -- (i) ASIC is to exercise the function under an agreement referred to in section 11(8) or (9A)(b) of the ASIC Act; and (ii) ASIC is authorised to exercise that function 20 under section 11 of the ASIC Act; and (c) specify that a reference to ASIC in an excluded Corporations legislation provision that is the subject of the declaration is to be a reference to another person; 25 and (d) identify an excluded Corporations legislation provision to which the declaration relates by reference to the provision as in force at a particular time; and (e) specify a court (other than the Supreme Court) to 30 exercise a function conferred on a court or the Court by an excluded Corporations legislation provision to which the declaration relates. page 13 [Draft Bill for public comment]

Co-operatives Bill 2006 Part 1 Preliminary Division 4 Application of Corporations Act to co-operatives s. 11 (3) Words and expressions used in this section and also in the Corporations (Ancillary Provisions) Act 2001 Part 3 have the same meanings in this section as they have in that Part. 11. Modifications to applied provisions 5 (1) If a provision of this Act or the regulations declares a matter to be an applied Corporations legislation matter for the purposes of the Corporations (Ancillary Provisions) Act 2001 Part 3 (the "declaratory provision") in relation to any provisions of the Corporations legislation (the "applied provisions"), the 10 declaratory provision is taken to specify the following modifications -- (a) a reference in the applied provisions to articles or a memorandum of association or a constitution or replaceable rules is to be read as a reference to rules; 15 (b) a cross-reference in the applied provisions to another provision of the Corporations Act is, if that cross-reference is not appropriate (because for example the provision cross-referred to is not among the applied provisions), to be read as a cross-reference to the 20 equivalent provision of this Act; (c) a reference in the applied provisions to the Gazette is to be read as a reference to the Western Australian Government Gazette; (d) a reference in the applied provisions to the 25 Commonwealth is to be read as a reference to this State; (e) any of the applied provisions that are not relevant to co-operatives or that are incapable of application to co-operatives are to be ignored; (f) modifications prescribed under a regulation under 30 subsection (2). (2) The regulations may prescribe the modifications that are necessary or desirable for the effective operation of the applied provisions. page 14 [Draft Bill for public comment]

Co-operatives Bill 2006 Formation Part 2 Types of co-operatives Division 1 s. 12 Part 2 -- Formation Division 1 -- Types of co-operatives 12. Types of co-operatives (1) A body may be registered under this Act as a co-operative. 5 (2) A co-operative may be either -- (a) a trading co-operative; or (b) a non-trading co-operative. 13. Trading co-operatives (1) A trading co-operative must have a share capital. 10 (2) A trading co-operative is a co-operative whose rules allow it to give returns or distributions on surplus or share capital. (3) A trading co-operative must have a membership of -- (a) for a co-operative group, 2 or more co-operatives; and (b) for any other trading co-operative -- 15 (i) if a lesser number than 5 is prescribed by the regulations, at least that number of active members; or (ii) otherwise, 5 or more active members. 14. Non-trading co-operatives 20 (1) A non-trading co-operative is a co-operative whose rules prohibit it from giving returns or distributions on surplus or share capital to members, other than the nominal value of shares, if any, at winding up. (2) A non-trading co-operative may or may not have a share capital. 25 (3) A non-trading co-operative must have a membership of -- (a) for a co-operative group, 2 or more co-operatives; and page 15 [Draft Bill for public comment]

Co-operatives Bill 2006 Part 2 Formation Division 2 Formation meeting s. 15 (b) for any other non-trading co-operative -- (i) if a lesser number than 5 is prescribed by the regulations, at least that number of active members; or 5 (ii) otherwise, 5 or more active members. Division 2 -- Formation meeting 15. Formation meeting (1) Before a proposed co-operative, other than an existing corporation, can be registered, a formation meeting must be held 10 in accordance with this section. (2) At the formation meeting -- (a) a person must act as chairman, and a person must be specified to act as secretary; and (b) in the case of a proposed trading co-operative, a 15 disclosure statement approved under section 16 must be presented to the meeting; and (c) the proposed rules of the co-operative approved under section 17 in respect of the proposed co-operative, must be agreed to by two-thirds of the prospective members 20 attending the meeting; and (d) the prospective members attending the meeting must sign the application for membership; and (e) the prospective members attending the meeting must elect the first directors of the proposed co-operative in 25 accordance with the proposed rules; and (f) the prospective members attending the meeting must authorise a person -- (i) to apply to the Registrar for registration of the proposed co-operative; and 30 (ii) to do anything necessary to have the proposed co-operative registered. page 16 [Draft Bill for public comment]

Co-operatives Bill 2006 Formation Part 2 Approval of disclosure statement and rules Division 3 s. 16 (3) The formation meeting must be held by -- (a) for a co-operative group, not less than 2 suitably qualified co-operatives; and (b) for any other co-operative, not less than 5 persons, or if 5 a lesser number than 5 is prescribed by the regulations, not less than the prescribed number of persons, suitably qualified to be members of the proposed co-operative. (4) For the purposes of subsection (3), a person or a co-operative is suitably qualified to be a member if -- 10 (a) there are reasonable grounds to believe the person or co-operative will be an active member of the proposed co-operative; and (b) for an individual, the person has attained the age of 18; and 15 (c) the person satisfies any other requirements for membership set out in the proposed rules. (5) Each co-operative forming a proposed co-operative group may be represented at the formation meeting by one person. Division 3 -- Approval of disclosure statement and rules 20 16. Approval of disclosure statement (1) A draft disclosure statement of a proposed trading co-operative must be submitted to the Registrar at least 28 days (or a shorter period the Registrar may allow in a particular case) before the formation meeting is due to be held. 25 (2) The draft disclosure statement submitted under subsection (1) must be accompanied by a written statement specifying the date on which the formation meeting is due to be held. (3) The disclosure statement must contain the information necessary to ensure that prospective members are adequately 30 informed of the nature and extent of a person's financial page 17 [Draft Bill for public comment]

Co-operatives Bill 2006 Part 2 Formation Division 3 Approval of disclosure statement and rules s. 16 involvement or liability as a member of the co-operative including so far as applicable -- (a) the estimated costs of formation; and (b) the active membership provisions of the proposed 5 co-operative; and (c) the rights and liabilities attaching to shares in the proposed co-operative; and (d) the capital required for the co-operative at the time of formation; and 10 (e) the projected income and expenditure of the co-operative for its first year of operation; and (f) information about any contracts required to be entered into by the co-operative; and (g) any other information that the Registrar directs. 15 (4) The disclosure statement must not include a statement purporting to be made by an expert or to be based on a statement made by an expert unless -- (a) the expert has given, and has not withdrawn, the expert's written consent to the submission of the 20 disclosure statement with the statement included in the form and context in which it is included; and (b) there appears in the disclosure statement a statement that the expert has given, and has not withdrawn, the expert's consent. 25 (5) The Registrar may -- (a) approve the draft statement as submitted; or (b) amend the draft statement, or require a stated amendment of the draft, and then approve the amended statement; or 30 (c) approve a different statement to that submitted; or (d) refuse to approve the statement; or page 18 [Draft Bill for public comment]

Co-operatives Bill 2006 Formation Part 2 Approval of disclosure statement and rules Division 3 s. 17 (e) require the person submitting the disclosure statement to give the Registrar any additional information the Registrar reasonably requires, and then act under paragraph (a), (b), (c) or (d). 5 (6) The Registrar may approve a disclosure statement with or without conditions. (7) Subject to subsection (8), the Registrar approves of a disclosure statement by giving written notice of the approval of the statement to the person who submitted the draft statement to the 10 Registrar. (8) The Registrar is taken to have approved the disclosure statement as submitted to the Registrar unless at least 5 days before the date specified in the written statement submitted under subsection (2), the Registrar gives written notice to the person 15 who submitted the draft statement that the Registrar -- (a) has approved an amended or different disclosure statement; or (b) is still considering the matter; or (c) refuses to approve the disclosure statement. 20 17. Approval of rules (1) A draft of the rules proposed for the co-operative (including active membership provisions in accordance with Part 6) must be submitted to the Registrar at least 35 days (or a shorter period the Registrar may allow in a particular case) before the 25 formation meeting is due to be held. (2) The draft rules submitted under subsection (1) must be accompanied by a written statement specifying the date on which the formation meeting is due to be held. (3) The proposed rules must -- 30 (a) be in accordance with section 99; and (b) be in a form that may reasonably be approved; and page 19 [Draft Bill for public comment]

Co-operatives Bill 2006 Part 2 Formation Division 4 Registration of proposed co-operative s. 18 (c) if the rules contain any alterations of the model rules, be accompanied by a statement setting out the alterations and the reasons for the alterations. (4) If the proposed rules do not make provision for each matter 5 included in the model rules, the Registrar may approve the relevant provisions of the model rules as rules of the co-operative. (5) The Registrar may -- (a) approve the proposed rules as submitted; or 10 (b) approve different proposed rules to those submitted; or (c) refuse to approve the proposed rules. (6) Subject to subsection (7), the Registrar approves proposed rules by giving written notice of that approval to the person who submitted the proposed rules to the Registrar. 15 (7) The Registrar is taken to have approved the proposed rules as submitted to the Registrar unless at least 5 days before the date specified in the written statement submitted under subsection (2), the Registrar gives written notice to the person who submitted the proposed rules that the Registrar -- 20 (a) has approved different proposed rules to those submitted; or (b) is still considering the matter; or (c) refuses to approve the proposed rules. Division 4 -- Registration of proposed co-operative 25 18. Application for registration of proposed co-operative (1) An application for registration as a co-operative, other than an application by a corporation under Division 5, must -- (a) be made in the form approved by the Registrar; and (b) be accompanied by the fee prescribed by the regulations; 30 and page 20 [Draft Bill for public comment]

Co-operatives Bill 2006 Formation Part 2 Registration of proposed co-operative Division 4 s. 18 (c) be signed by -- (i) for a co-operative group, at least 2 directors elected at the formation meeting; and (ii) for any other proposed co-operative, at least 5, or 5 if a lesser number than 5 is prescribed under a regulation, at least the prescribed number of, suitably qualified members, including 2 directors elected at the formation meeting; and 10 (d) be accompanied by -- (i) a copy of the proposed rules, certified in writing by the chairman and secretary for the formation meeting to have been agreed to at the formation meeting in accordance with section 15(2)(c); and 15 (ii) in the case of a proposed trading co-operative, a copy of the disclosure statement, certified in writing by the chairman and secretary for the formation meeting to have been presented to that meeting as required by section 15(2)(b); and 20 (iii) a statement listing the name, address, occupation and place and date of birth of each person elected at the formation meeting in accordance with section 15(2)(e) to be a director of the proposed co-operative and containing a certificate signed 25 by the chairman and secretary verifying that those persons were elected; and (iv) a certificate signed by the chairman and secretary verifying that a specified person is the person authorised under section 15(2)(f); and 30 (v) any other particulars that the Registrar may require. (2) The application must be lodged with the Registrar within 2 months after closure of the formation meeting for the page 21 [Draft Bill for public comment]

Co-operatives Bill 2006 Part 2 Formation Division 4 Registration of proposed co-operative s. 19 proposed co-operative or within the extended period that the Registrar may allow. 19. Registration of co-operative (1) When an application is made under this Division for registration 5 of a proposed co-operative, the Registrar must register the co-operative and its rules if satisfied that the requirements referred to in subsection (2) have been met. (2) The requirements for registration of a co-operative under this Division are that -- 10 (a) the proposed rules of the proposed co-operative must be those approved by the Registrar under section 17; and (b) the requirements of this Act must have been complied with in relation to the proposed co-operative and compliance must be likely to continue; and 15 (c) the proposed co-operative must be designed to function in accordance with the co-operative principles or, if it is not designed to function entirely in accordance with the co-operative principles, the Registrar must be satisfied that there are special reasons why the co-operative 20 should be registered under this Act; and (d) there must be no reasonable cause for refusing registration of the proposed co-operative. (3) If the Registrar is not satisfied that the requirements for registration of the co-operative have been met the Registrar may 25 refuse to register the co-operative and its rules. (4) The Registrar must give to the applicant written notice of the refusal and the reasons for the refusal. 20. Incorporation and certificate of registration (1) The incorporation of the co-operative takes effect on the 30 registration of the co-operative. page 22 [Draft Bill for public comment]

Co-operatives Bill 2006 Formation Part 2 Registration of an existing corporation Division 5 s. 21 (2) On the registration of the co-operative, the Registrar must issue a certificate of registration. Division 5 -- Registration of an existing corporation 21. Existing corporation can be registered 5 A corporation may apply to the Registrar to be registered as a co-operative under this Act, if the corporation is -- (a) incorporated or registered or deemed to be registered under the Corporations Act; or (b) incorporated or registered under any other Act relating 10 to the incorporation or registration of bodies corporate. 22. Formation meeting and transitional provision (1) Before applying for registration as a co-operative, a corporation must pass a special resolution in accordance with its articles of association or rules approving of -- 15 (a) the proposed registration; and (b) any alterations of its existing memorandum and articles of association or rules necessary to enable the corporation to comply with this Act. (2) At the meeting to pass the special resolution -- 20 (a) the proposed rules of the proposed co-operative approved under section 17, and including active membership provisions in accordance with Part 6, must also be passed by special resolution; and (b) in the case of a proposed trading co-operative, a 25 disclosure statement approved under section 16 must be presented to the meeting. (3) For a corporation that on registration under this Division will be a transferred co-operative, the requirement to pass a special resolution approving the proposed registration and the proposed page 23 [Draft Bill for public comment]

Co-operatives Bill 2006 Part 2 Formation Division 5 Registration of an existing corporation s. 23 rules is satisfied if the resolution complies with section 182(1)(a) and (3). 23. Application for registration An application for registration must be -- 5 (a) in the form approved by the Registrar; and (b) accompanied by the fee prescribed by the regulations; and (c) accompanied by -- (i) a written declaration signed by the directors or 10 the committee of management of the corporation stating that at a meeting of the directors or committee they formed the opinion that the corporation will be able to pay its debts as they fall due; and 15 (ii) a report in the form approved by the Registrar as to the affairs of the corporation and showing its assets and liabilities, made up to the latest practicable date before the application; and (iii) a copy of the memorandum and articles of 20 association or rules of the corporation in force at the date of the application; and (iv) 2 copies of the proposed rules of the co-operative, certified in writing by the directors or the committee of management to have been 25 approved under section 22(2) by special resolution; and (v) in the case of a proposed trading co-operative, a copy of the disclosure statement presented to the meeting held under section 22, certified in 30 writing by the directors or committee of management of the corporation to have been presented to that meeting; and page 24 [Draft Bill for public comment]

Co-operatives Bill 2006 Formation Part 2 Registration of an existing corporation Division 5 s. 24 (vi) a list containing the name, address, occupation and place and date of birth of each director; and (vii) evidence to the satisfaction of the Registrar of the incorporation of the existing corporation; and 5 (viii) any other particulars that the Registrar may require. 24. Requirements for registration (1) When an application is made for registration as a co-operative under this Division, the Registrar must register the corporation 10 as a co-operative under this Act and register its rules under this Act if the Registrar is satisfied that the requirements for registration of the co-operative have been met. (2) The requirements for registration as a co-operative under this Division are as follows -- 15 (a) the proposed rules of the proposed co-operative must be the proposed rules approved by the Registrar under section 17; (b) the requirements of this Act must have been complied with in relation to the proposed co-operative and 20 compliance must be likely to continue; (c) there must be no reasonable cause for refusing registration of the proposed co-operative. (3) If the Registrar is not satisfied that the requirements for registration of the co-operative have been met, the Registrar 25 may refuse to register the co-operative and its rules and must give to the applicant written notice of the refusal and the reasons for the refusal. (4) If the Registrar has decided under this section to register a corporation under this Act, the corporation must notify the 30 authority responsible for registering the corporation under the law under which it was previously registered of that decision. page 25 [Draft Bill for public comment]

Co-operatives Bill 2006 Part 2 Formation Division 5 Registration of an existing corporation s. 25 (5) Despite anything to the contrary in this Division, the registration of a corporation as a co-operative does not take effect until the corporation ceases to be registered under the law under which it was previously registered. 5 (6) The corporation must notify the Registrar in writing within 7 days after ceasing to be registered under that other law. 25. Transitional provision (1) This section applies to a corporation that, on registration under this Division, will be a transferred co-operative. 10 (2) Section 24(4) to (6) does not apply to the corporation. (3) If the Registrar decides to register the corporation, the Registrar must ensure that the corporation ceases to be registered under the old Act. 26. Certificate of registration 15 (1) On the registration of a corporation as a co-operative, the Registrar must -- (a) issue a certificate of registration to the corporation; and (b) publish notice of the issue of the certificate in the Gazette. 20 (2) The corporate name of a corporation registered as a co-operative is the name approved by the Registrar, as specified in the certificate of registration issued by the Registrar. 27. Effect of registration (1) The corporation is taken to be incorporated under this Act on its 25 registration. (2) Except as expressly provided in this Act, the registration and incorporation of the corporation as a co-operative does not prejudice any right of a member in respect of any shares held at the time of registration and incorporation. page 26 [Draft Bill for public comment]

Co-operatives Bill 2006 Formation Part 2 Conversion of co-operative Division 6 s. 28 (3) The change of registration and incorporation does not affect the identity of the corporation which is taken to be the same body after registration as a co-operative as it was before and no act, matter or thing is affected by the change. 5 Division 6 -- Conversion of co-operative 28. Conversion of co-operative (1) A co-operative may, by alteration of its rules, convert from -- (a) a co-operative with share capital to a co-operative without share capital or vice versa; or 10 (b) a trading co-operative to a non-trading co-operative or vice versa. (2) An alteration of the rules for the conversion of a co-operative must be approved by special resolution passed by means of a special postal ballot. 15 Division 7 -- Reviews 29. Appeal against refusal to approve disclosure statement The person who submitted a draft disclosure statement to the Registrar under this Act may appeal to the Supreme Court against a failure of the Registrar to approve the statement. 20 30. Appeal against refusal to approve draft rules The person who submitted draft rules to the Registrar under this Act may appeal to the Supreme Court against a failure of the Registrar to approve the rules. 31. Appeal against refusal to register 25 The applicant for registration of a proposed co-operative under this Part may appeal to the Supreme Court against a failure of the Registrar to register the co-operative. page 27 [Draft Bill for public comment]

Co-operatives Bill 2006 Part 2 Formation Division 8 General s. 32 32. Supreme Court's powers on appeal The Supreme Court may make any order it considers appropriate to dispose of an appeal under this Division. Division 8 -- General 5 33. Acceptance of money by proposed co-operative (1) A proposed co-operative that, or a person on a proposed co-operative's behalf who, accepts money for the proposed co-operative before the proposed co-operative is registered must hold that money on trust until the co-operative is registered. 10 (2) If a co-operative is not registered within the period of 3 months after the acceptance of money under subsection (1), the proposed co-operative or the person who accepted the money on its behalf must refund the money to the person who paid it. Penalty: a fine of $6 000. 15 34. Issue of duplicate certificate The Registrar must issue a duplicate certificate of registration if -- (a) the Registrar is satisfied that the original certificate is lost or destroyed; and 20 (b) the fee prescribed by the regulations is paid. page 28 [Draft Bill for public comment]

Co-operatives Bill 2006 Legal capacity and powers Part 3 General powers Division 1 s. 35 Part 3 -- Legal capacity and powers Division 1 -- General powers 35. Effect of incorporation As a corporation, a co-operative -- 5 (a) has perpetual succession; and (b) has a common seal; and (c) may sue and be sued in its corporate name; and (d) subject to this Act, is capable of taking, purchasing, leasing, holding, selling and disposing of real and 10 personal property; and (e) may do and suffer all acts and things that corporations may by law do and suffer and that are necessary or expedient. 36. Power to form companies and enter into joint ventures 15 Without limiting any other provision of this Act, a co-operative has power -- (a) to form or participate in the formation of a corporation or unit trust; and (b) to acquire interests in and sell or otherwise dispose of 20 interests in corporations, unit trusts and joint ventures; and (c) to form or enter into a partnership, joint venture or other association with other persons or bodies. Division 2 -- Doctrine of ultra vires abolished 25 37. Interpretation In this Division -- (a) a reference to the doing of an act by a co-operative includes a reference to the making of an agreement by page 29 [Draft Bill for public comment]

Co-operatives Bill 2006 Part 3 Legal capacity and powers Division 2 Doctrine of ultra vires abolished s. 38 the co-operative and a reference to a transfer of property to or by the co-operative; and (b) a reference to legal capacity includes a reference to powers. 5 38. Doctrine of ultra vires abolished (1) The objects of this Division are -- (a) to provide that the doctrine of ultra vires does not apply to co-operatives; and (b) without affecting the validity of a co-operative's 10 dealings with others, to ensure that the co-operative's officers and members give effect to the provisions of the co-operative's rules relating to the primary activities or powers of the co-operative. (2) This Division is to be construed and have effect in accordance 15 with subsection (1). 39. Legal capacity (1) A co-operative has, both within and outside this State, the legal capacity of a natural person. (2) Without limiting subsection (1), a co-operative has, both within 20 and outside this State, power -- (a) to issue and allot fully or partly paid shares in the co-operative; and (b) to issue debentures of, and co-operative capital units in, the co-operative; and 25 (c) to distribute any of the property of the co-operative among the members, in kind or otherwise; and (d) to give security by charging uncalled capital; and (e) to grant a charge on property of the co-operative; and page 30 [Draft Bill for public comment]

Co-operatives Bill 2006 Legal capacity and powers Part 3 Doctrine of ultra vires abolished Division 2 s. 40 (f) to procure the co-operative to be registered or recognised as a corporation in any place outside this State; and (g) to do any other act that it is authorised to do by any 5 other law, including a law of a place outside this State. (3) Subsections (1) and (2) have effect in relation to a co-operative -- (a) subject to this Act but despite section 40(2); and (b) if the co-operative's rules contain an express or implied 10 restriction on, or an express or implied prohibition of, the exercise by the co-operative of any of its powers, despite that restriction or prohibition; and (c) if the rules of the co-operative contain a provision stating the objects of the co-operative, despite that fact. 15 (4) The fact that the doing of an act by a co-operative would not be, or is not, in its best interests does not affect its legal capacity to do the act. 40. Restrictions on co-operatives in rules (1) A co-operative's rules may contain an express restriction on, or 20 an express prohibition of, the exercise by the co-operative of a power of the co-operative. (2) A co-operative contravenes this section if -- (a) it exercises a power contrary to an express restriction on, or an express prohibition of, the exercise of that power, 25 being a restriction or prohibition contained in the co-operative's rules; or (b) the rules of the co-operative contain a provision stating the objects of the co-operative and the co-operative does an act otherwise than in pursuance of those objects. 30 (3) An officer of a co-operative who is involved in a contravention by the co-operative of this section also contravenes this section. page 31 [Draft Bill for public comment]

Co-operatives Bill 2006 Part 3 Legal capacity and powers Division 2 Doctrine of ultra vires abolished s. 41 (4) A person who contravenes this section is not guilty of an offence. 41. Results of contravention of restriction in rules (1) The exercise of a power or the doing of an act in contravention 5 of section 40 is not invalid merely because of the contravention. (2) An act of an officer of a co-operative is not invalid merely because, by doing the act, the officer contravenes section 40. (3) The fact that the exercise of a power or the doing of an act contravenes or would contravene section 40 may be asserted or 10 relied on only in -- (a) a prosecution of a person for an offence against this Act; or (b) an application for an order under Part 4 Division 5; or (c) an application for an injunction under section 485 to 15 restrain the co-operative from entering into an agreement; or (d) proceedings, other than an application for an injunction, by the co-operative, or by a member of the co-operative, against the present or former officers of the 20 co-operative; or (e) an application by the Registrar or by a member of the co-operative for the winding up of the co-operative. (4) If, but for subsection (3), a court would have power under section 485 to grant, on the application of a person, an 25 injunction restraining a co-operative or an officer of a co-operative from engaging in particular conduct constituting a contravention of section 40, the court may, on the application of that person, order the co-operative or the officer to pay damages to that person or any other person. page 32 [Draft Bill for public comment]

Co-operatives Bill 2006 Legal capacity and powers Part 3 Persons having dealings with co-operatives Division 3 s. 42 Division 3 -- Persons having dealings with co-operatives 42. Assumptions entitled to be made (1) A person is entitled to make the assumptions in section 43 in relation to -- 5 (a) dealings with a co-operative; and (b) dealings with a person who has, or purports to have, directly or indirectly acquired title to property from a co-operative. (2) If a person is entitled to assume a matter, the co-operative or 10 anyone referred to in subsection (1)(b) is not entitled to assert in proceedings in relation to the dealings that the matter is incorrect. 43. Assumptions (1) A person may assume that the co-operative's rules have been 15 complied with. (2) A person may assume that anyone who appears, from information provided by the co-operative that is available to the public from the Registrar, to be a director or officer of the co-operative -- 20 (a) has been properly appointed; and (b) has authority to exercise the powers and perform the duties customarily exercised or performed by a director or officer of a similar co-operative. (3) A person may assume that anyone who is held out by the 25 co-operative to be an officer or agent of the co-operative -- (a) has been properly appointed; and (b) has authority to exercise the powers and to perform the duties customarily exercised or performed by that kind of officer or agent of a similar co-operative. page 33 [Draft Bill for public comment]

Co-operatives Bill 2006 Part 3 Legal capacity and powers Division 3 Persons having dealings with co-operatives s. 44 (4) A person may assume that anyone who is, or may be assumed to be, an officer or agent of the co-operative who has authority to issue a document or a certified copy of a document on its behalf also has authority to warrant that the document is genuine or is a 5 true copy. (5) A person may assume that a document has been properly executed by the co-operative if it is signed by 2 people, one of whom is, or may be assumed to be, a director of the co-operative, and the other is, or may be assumed to be, a 10 director or officer of the co-operative. (6) A person may assume that a document has been sealed by the co-operative if it bears what appears to be an impression of the co-operative's seal and the sealing of the document appears to be witnessed by 2 people, one of whom is, or may be assumed 15 to be, a director of the co-operative, and the other is, or may be assumed to be, a director or officer of the co-operative. (7) A person may assume that the officers and agents of the co-operative properly perform their duties to the co-operative. 44. Person who knows or ought to know is not entitled to make 20 assumptions This Division does not entitle a person to make an assumption, and does not prevent an assertion being made in relation to an assumption if -- (a) the person has actual knowledge that the assumption is 25 not correct; or (b) the person's connection or relationship with the co-operative is such that the person ought to know that the assumption is not correct. page 34 [Draft Bill for public comment]

Co-operatives Bill 2006 Legal capacity and powers Part 3 Persons having dealings with co-operatives Division 3 s. 45 45. Lodgment of documents not to constitute constructive knowledge (1) A person is not considered to have knowledge of a co-operative's rules, any of the contents of a co-operative's 5 rules, a document, the contents of a document, or any particulars, merely because of either or both of the following -- (a) the rules, the document or the particulars have been lodged with the Registrar; (b) the rules, the document or the particulars are referred to 10 in any other document that has been lodged with the Registrar, or lodged with a person under a previous law corresponding to a provision of this Act. (2) Subsection (1) does not apply in relation to a document, or in relation to the contents of a document, that has been lodged 15 under Part 10 Division 3 to the extent that the document relates to a charge that is registrable under that Division or law. (3) Despite subsection (1), a member of a co-operative is taken to have knowledge of the rules of the co-operative. 46. Effect of fraud 20 (1) A person's entitlement under this Division to make an assumption is not affected merely by the fact that a person -- (a) has acted or is acting fraudulently in relation to the dealing or acquisition or purported acquisition of title to property to which the assumption relates; or 25 (b) has forged a document that appears to have been sealed on behalf of a co-operative. (2) A person is not entitled to make an assumption if the person has actual knowledge of the fraudulent action or forgery referred to in subsection (1). page 35 [Draft Bill for public comment]

Co-operatives Bill 2006 Part 3 Legal capacity and powers Division 4 Authentication and execution of documents and confirmation of contracts s. 47 Division 4 -- Authentication and execution of documents and confirmation of contracts 47. Common seal A document or proceeding requiring authentication by a 5 co-operative may be authenticated under the common seal of the co-operative. 48. Official seal (1) A co-operative may, if authorised by its rules, have, for use in place of its common seal outside the State where its common 10 seal is kept, one or more official seals, each of which must be a facsimile of the common seal of the co-operative with the addition on its face of the name of every place where it is to be used. (2) The person affixing an official seal must, in writing signed by 15 the person, certify on the document to which it is affixed the date on which and the place at which it is affixed. (3) A document sealed with an official seal is taken to be sealed with the common seal of the co-operative. 49. Authentication need not be under seal 20 A document or proceeding requiring authentication by a co-operative may be authenticated by the signature of two people, one of whom is a director of the co-operative and one of whom is a director or the secretary of the co-operative and need not be authenticated under the seal of the co-operative. 25 50. Co-operative may authorise person to execute deed (1) A co-operative may, by writing under its common seal, empower a person, either generally or in relation to a specified matter, as its agent or attorney ("authorised attorney") to execute deeds on its behalf. page 36 [Draft Bill for public comment]

Co-operatives Bill 2006 Legal capacity and powers Part 3 Authentication and execution of documents and confirmation Division 4 of contracts s. 51 (2) A deed signed by an authorised attorney on behalf of the co-operative and under the seal of the attorney, or under the appropriate official seal of the co-operative, binds the co-operative and has effect as if it were under the common seal 5 of the co-operative. (3) The authority of an authorised attorney, as between the co-operative and a person dealing with the attorney, continues during the period, if any, specified in the instrument conferring the authority or, if no period is specified, until notice of the 10 revocation or termination of the authority of the attorney has been given to the person dealing with the attorney. 51. Execution under seal A contract or other document executed, or purporting to have been executed, under the seal of a co-operative is not invalid 15 merely because a person attesting the affixing of the seal was in any way, whether directly or indirectly, interested in the contract or other document or in the matter to which the contract or other document relates. 52. Contractual formalities 20 (1) So far as concerns the formalities of making, varying or discharging a contract, a person acting under the express or implied authority of a co-operative may make, vary or discharge a contract in the name of, or on behalf of, the co-operative as if that contract were made, varied or discharged by a natural 25 person. (2) The making, varying or discharging of a contract under subsection (1) is effectual in law and binds the co-operative and other parties to the contract. (3) This section does not prevent a co-operative from making, 30 varying or discharging a contract under its seal. page 37 [Draft Bill for public comment]

Co-operatives Bill 2006 Part 3 Legal capacity and powers Division 5 Pre-registration contracts s. 53 53. Other requirements as to consent or sanction not affected This Division does not affect the operation of a law that requires some consent or sanction to be obtained, or some procedure to be complied with, in relation to the making, varying or 5 discharging of a contract. Division 5 -- Pre-registration contracts 54. Contracts before registration (1) If a person enters into, or purports to enter into, a contract on behalf of, or for the benefit of, a proposed co-operative, the 10 co-operative becomes bound by the contract and entitled to its benefit if the co-operative, or a co-operative that is reasonably identifiable with it, is registered and ratifies the contract -- (a) within a reasonable period after the contract is entered into; or 15 (b) within any period agreed to by the parties to the contract. (2) The person is released from any liability under the pre-registration contract if the co-operative enters into another contract in substitution for it -- 20 (a) within a reasonable period after the pre-registration contract is entered into; or (b) within any period agreed to by the parties to the pre-registration contract. (3) The person is liable to pay damages to each other party to the 25 pre-registration contract if the co-operative is not registered, or the co-operative is registered but does not ratify the contract or enter into a substitute for it -- (a) within a reasonable period after the contract is entered into; or 30 (b) within the period agreed to by the parties to the contract. page 38 [Draft Bill for public comment]

Co-operatives Bill 2006 Legal capacity and powers Part 3 Pre-registration contracts Division 5 s. 55 (4) The maximum amount of damages the person is liable to pay to a party is the amount the co-operative would be liable to pay to the party if the co-operative had been registered and had ratified the contract and then completely failed to perform it. 5 (5) If proceedings are brought to recover damages under subsection (3) because the co-operative is registered but does not ratify the pre-registration contract or enter into a substitute for it, the court may do anything that it thinks just in the circumstances, including ordering the co-operative -- 10 (a) to pay all or part of the damages that the person is liable to pay; or (b) to transfer property that the co-operative received because of the contract to a party to the contract; or (c) to pay an amount to a party to the contract. 15 (6) If the co-operative ratifies the pre-registration contract but fails to perform all or part of it, the court may order the person to pay all or part of the damages that the co-operative is ordered to pay. 55. Person may be released from liability but is not entitled to indemnity 20 (1) Any of the parties to the pre-registration contract may release the person who entered into, or purported to enter into, the contract from any liability in relation to that contract. (2) The release must be in writing. (3) The party giving the release is not entitled to recover damages 25 under section 54 from the person. (4) Despite any rule of law or equity, the person does not have a right of indemnity against the co-operative in respect of the person's liability under this Division even if the person was acting, or purporting to act, as trustee for the co-operative. page 39 [Draft Bill for public comment]

Co-operatives Bill 2006 Part 3 Legal capacity and powers Division 5 Pre-registration contracts s. 56 56. This Division replaces other rights and liabilities This Division replaces any rights or liabilities anyone would otherwise have in relation to the pre-registration contract. page 40 [Draft Bill for public comment]

Co-operatives Bill 2006 Membership Part 4 General Division 1 s. 57 Part 4 -- Membership Division 1 -- General 57. Becoming a member (1) On the registration of a co-operative, the persons who signed the 5 application for registration become members of the co-operative. (2) Other persons may be admitted as members of the co-operative as provided by its rules. (3) A person under 18 years of age may be admitted as a member of 10 the co-operative unless the rules of the co-operative provide otherwise. (4) A corporation is not, merely because it is a corporation, disqualified from being a member of a co-operative unless the co-operative's rules provide that corporations are disqualified 15 from being members. (5) If 2 or more co-operatives merge, the members of the merged co-operative are -- (a) the members of the merging co-operatives; and (b) other persons admitted as members of the merged 20 co-operative in accordance with its rules. 58. Members of co-operative group (1) The members of a co-operative group are -- (a) the co-operatives by which the co-operative group is formed; and 25 (b) any other co-operative, admitted to membership in accordance with the rules of the co-operative group; and (c) any other corporation or other body admitted to membership in accordance with subsection (2). page 41 [Draft Bill for public comment]

Co-operatives Bill 2006 Part 4 Membership Division 1 General s. 59 (2) A corporation or other body, not being a co-operative, may be admitted to membership of the co-operative group if -- (a) it is incorporated or registered under any other law, whether or not a law of this State; and 5 (b) in the opinion of the board of the co-operative group, it is designed to function in accordance with co-operative principles; and (c) it is eligible to be admitted to membership in accordance with the rules of the co-operative group. 10 59. Qualification for membership and transitional provision (1) Subject to subsection (3), a person is not qualified to be admitted to membership of a co-operative unless -- (a) there are reasonable grounds for believing that the person will be an active member of the co-operative; 15 and (b) the person is otherwise eligible under the rules of the co-operative. (2) The rules of a co-operative must contain provisions that -- (a) impose a duty on all persons who become members to 20 be active members; and (b) explain the consequences of failing to be or ceasing to be an active member. (3) A person who was a member of a corporation immediately before that corporation became a transferred co-operative is 25 qualified to be admitted to membership of the co-operative despite the absence of reasonable grounds for believing that the person will be an active member of the co-operative. 60. Membership may be joint Membership of a co-operative may be individual and, unless the 30 rules of the co-operative provide otherwise, may be joint. page 42 [Draft Bill for public comment]

Co-operatives Bill 2006 Membership Part 4 General Division 1 s. 61 61. Members under 18 years of age (1) A member of a co-operative is not entitled to avoid any obligation or liability as a member under any contract, deed or other document entered into as a member on any ground 5 relating to minority. (2) A person under 18 years of age is not competent to hold an office in a co-operative. (3) A member of a co-operative who is under 18 years of age is not entitled to vote. 10 (4) This section applies only to natural persons. 62. Representatives of corporations (1) If a corporation is a member of a co-operative, it may by instrument served on the co-operative appoint a person to represent it in relation to its membership. 15 (2) The power to appoint a representative is subject to any restriction imposed by the rules of the co-operative as to the entitlement of a person to represent a corporation. (3) A person is not qualified to be appointed the representative of a company that is not a listed corporation (within the meaning of 20 the Corporations Act) unless the person is an officer, member or employee of the company. 63. Notification of shareholders and shareholdings On the request of the board of directors of the co-operative, a corporation that is a member of the co-operative must make 25 available for inspection by the board of directors of the co-operative -- (a) a list of the names of all the shareholders of the corporation and the number of shares held by each shareholder; or page 43 [Draft Bill for public comment]

Co-operatives Bill 2006 Part 4 Membership Division 1 General s. 64 (b) in the case of a corporation without share capital, a list of the members of the corporation. Penalty: a fine of $2 000. 64. Circumstances in which membership ceases -- all 5 co-operatives (1) A person ceases to be a member of a co-operative in each of the following circumstances and as otherwise provided by this Act -- (a) if the member's membership is cancelled under Part 6; 10 (b) if the member is expelled or resigns in accordance with the rules of the co-operative; (c) if -- (i) the member becomes bankrupt; or (ii) the member's property becomes subject to 15 control under the law relating to bankruptcy, unless provision is made to the contrary in the rules of the co-operative; (d) on death; (e) if the contract of membership is rescinded on the ground 20 of misrepresentation or mistake; (f) in the case of a member that is a corporation, if the body is deregistered. (2) On the death of a member, the member's estate remains liable under section 68 as the member until the member's personal 25 representative or some other person is registered in the member's place. page 44 [Draft Bill for public comment]

Co-operatives Bill 2006 Membership Part 4 General Division 1 s. 65 65. Additional circumstances in which membership ceases -- co-operatives with share capital In the case of a co-operative that has a share capital, in addition to the circumstances in section 64, a member ceases to be a 5 member in each of the following circumstances -- (a) the member's total share is transferred to another person in accordance with the rules of the co-operative, and the transferee is registered as holder in the member's place; (b) the member's total share is forfeited in accordance with 10 this Act or the rules of the co-operative; (c) the member's total share is sold by the co-operative under a power conferred by the rules of the co-operative, and the purchaser is registered as holder in the member's place; 15 (d) the member's total share is purchased by the co-operative in accordance with this Act; (e) the amount paid up on the member's shares is repaid to the member in accordance with the rules of the co-operative. 20 66. Carrying on business with too few members (1) A person who is a director of a co-operative commits an offence if the person knowingly allows the co-operative to continue to carry on business with fewer than the minimum number of members for more than 28 days after the number of members 25 falls below the minimum number. Penalty: a fine of $2 000. (2) Each person who is found guilty of an offence under subsection (1) is also liable to satisfy all obligations of the co-operative incurred after the 28 days referred to in 30 subsection (1), and may be sued without any other member being joined in the action. page 45 [Draft Bill for public comment]

Co-operatives Bill 2006 Part 4 Membership Division 2 Rights and liabilities of members s. 67 (3) The minimum number of members allowed is -- (a) for a co-operative group, 2; or (b) for any other co-operative, 5, or if a lesser number is prescribed by the regulations, the prescribed number. 5 (4) The Registrar may, by written notice, extend and further extend in a particular case the period of 28 days referred to in subsection (1). (5) An application for an extension must be made -- (a) in a form approved by the Registrar; and 10 (b) before the period to be extended ends. Division 2 -- Rights and liabilities of members 67. Rights of membership not exercisable until registered etc. (1) A member of a co-operative is not entitled to exercise any rights of membership until -- 15 (a) the member's name appears as a member in the register of members, directors and shares referred to in section 235(1)(a); and (b) the member has made a payment to the co-operative for membership or acquired a share or interest that is 20 provided for in the rules of the co-operative. (2) The board of a co-operative must ensure that the name of a person admitted to membership is recorded as a member in the register of members, directors and shares within 28 days after the person is admitted to membership. 25 Penalty: a fine of $2 000. 68. Liability of members to co-operative (1) A member of a co-operative is not, as a member, under any personal liability to the co-operative, except as provided by this section. page 46 [Draft Bill for public comment]

Co-operatives Bill 2006 Membership Part 4 Rights and liabilities of members Division 2 s. 69 (2) A member of a co-operative with a share capital is liable to the co-operative for the amount, if any, unpaid on the shares held by the member together with any charges payable by the member to the co-operative as required by the rules of the co-operative. 5 (3) A member of a co-operative without a share capital is liable to the co-operative for any charges payable by the member to the co-operative as required by the rules of the co-operative. 69. Co-operative to make information available to person intending to become a member 10 (1) The board of a co-operative must give written notice to each person intending to become a member of the co-operative that the person may request to either inspect at the co-operative's nearest office, or be sent -- (a) a consolidated copy of the rules of the co-operative; and 15 (b) a copy of all special resolutions applicable to the member passed by the members of the co-operative, except special resolutions providing for an alteration of the rules of the co-operative; and (c) a copy of the last annual report of the co-operative under 20 section 240. (2) If a person who has received notice under this section makes a request referred to in subsection (1), the co-operative must comply with that request. 70. Entry fees and regular subscriptions 25 (1) The rules of a co-operative may -- (a) require the payment by members of entry fees and regular subscriptions; and (b) provide for the repayment of those fees and subscriptions on a person ceasing to be a member. page 47 [Draft Bill for public comment]

Co-operatives Bill 2006 Part 4 Membership Division 2 Rights and liabilities of members s. 71 (2) The calculation of the amount of a particular member's regular subscription may be based on the amount of business the member does with the co-operative. (3) A co-operative must give a person intending to become a 5 member written notice of entry fees or regular subscriptions payable by the member to the co-operative. (4) A person who becomes a member of a co-operative is not liable to pay entry fees or regular subscriptions except -- (a) those fees or subscriptions of which the person was 10 given written notice before becoming a member; and (b) any regular subscriptions that may be imposed by any subsequent alteration of the rules and of which the member has been given notice. 71. Members etc. may be required to deal with co-operative 15 (1) The rules of a co-operative may contain provisions that require a member to have specified dealings with the co-operative for a fixed period and to enter into a contract for that purpose. (2) A co-operative may, if authorised by its rules, make a contract with a member containing provisions that require the member to 20 have specified dealings with the co-operative for a fixed period. (3) In particular, the provisions of the rules or a contract may require a member -- (a) to sell products through or to the co-operative; or (b) to obtain supplies or services through or from the 25 co-operative; or (c) to pay to the co-operative a stated amount as liquidated damages for any failure to comply with a requirement authorised by this section. (4) An amount required to be paid to the co-operative as liquidated 30 damages is, for the purposes of section 73, a debt payable by the member to the co-operative. page 48 [Draft Bill for public comment]

Co-operatives Bill 2006 Membership Part 4 Rights and liabilities of members Division 2 s. 72 (5) A contract authorised by this section is binding on the co-operative and all other parties even though but for this Act the contract would be invalid as being in restraint of trade. (6) Rules authorised by this section are authorised even though, but 5 for this section, the rules might be invalid as being in restraint of trade. 72. Fines payable by members (1) A co-operative may impose a fine on a member for an infringement of the rules of the co-operative if the rules of the 10 co-operative so provide. (2) A fine imposed under subsection (1) must not exceed the maximum fine fixed by the rules in accordance with section 99. (3) A fine must not be imposed unless -- (a) notice of intention to impose the fine and the reason for 15 it has been given to the member; and (b) the member has been given a reasonable opportunity to appear before the board in person (with or without witnesses), or to send to the board a written statement to show cause why the fine should not be imposed. 20 (4) The co-operative may set off the whole or any part of the fine against an amount payable to the member for produce delivered by the member to the co-operative, but no part of the fine is to be set off against any advance that, in accordance with the rules of the co-operative, is payable to the member from the 25 co-operative, for produce so delivered. 73. Charge and set off of co-operative (1) A co-operative has, in relation to a debt payable by a member or former member to the co-operative, a charge on each of the following -- 30 (a) the share or interest in the capital and the credit balance and deposits of the member or former member; page 49 [Draft Bill for public comment]

Co-operatives Bill 2006 Part 4 Membership Division 2 Rights and liabilities of members s. 74 (b) any rebate, bonus, dividend or interest payable to the member or former member; (c) any entry fees and regular subscriptions required to be repaid to a member when the member ceases to be a 5 member. (2) The co-operative may set off any amount paid on account of that share or other thing, or any amount credited or payable to the member or former member, in or towards payment of the debt. 10 (3) The charge created by this section may be enforced by the appropriation by the co-operative of the thing that is subject to the charge, but only after at least 7 days notice has been given to the member or former member. (4) Any share in respect of which capital has been so appropriated 15 must be cancelled. 74. Repayment of shares on expulsion (1) When a member is expelled from a co-operative under its rules, the co-operative must, within one year after the day of expulsion -- 20 (a) repay to the former member an amount (the "repayable amount") made up of the amount paid up on the shares held by the member at the day of expulsion, less any amount owed by the member to the co-operative at the day of expulsion under the rules of the co-operative or 25 any contract or otherwise; or (b) apply the repayable amount under subsection (2) if -- (i) the board considers repayment would adversely affect the financial position of the co-operative; or 30 (ii) the board and the former member agree. page 50 [Draft Bill for public comment]

Co-operatives Bill 2006 Membership Part 4 Death of member Division 3 s. 75 (2) The repayable amount may be applied in one of the following ways -- (a) the co-operative may appropriate the amount as a donation to the co-operative, but only if the former 5 member consents in writing to the donation; (b) if the co-operative is a deposit taking co-operative, the co-operative may apply the amount as a deposit by the former member with the co-operative, subject to the requirements of section 131 as to interest on the deposit; 10 (c) the co-operative may issue debentures or co-operative capital units to the former member in satisfaction of the amount. (3) If the balance sheet of the co-operative last issued before the expulsion of a member of the co-operative disclosed a loss or 15 deficiency, the paid up value of the member's shares may, for the purposes of calculating the repayable amount, be reduced as described in subsection (4). (4) The paid up value of the member's shares may be reduced by an amount that bears to the amount of the loss or deficiency so 20 disclosed the same proportion as the number of shares held by the member bore to the total number of shares held by all members of the co-operative as at the date of expulsion of the member. (5) Shares for which capital has been repaid under subsection (1)(a) 25 or applied under subsection (1)(b) must be cancelled. Division 3 -- Death of member 75. Meaning of "interest" In this Division -- "interest", of a deceased member in a co-operative, includes -- 30 (a) the member's membership; and (b) any credit balance due to the member; and page 51 [Draft Bill for public comment]

Co-operatives Bill 2006 Part 4 Membership Division 3 Death of member s. 76 (c) any loan from or to or deposit with the co-operative; and (d) any surplus arising on the sale by the co-operative as mortgagee of any property mortgaged by the 5 deceased to the co-operative; "transfer", of an interest, includes the payment of money. 76. Transfer of share or interest on death of member Subject to section 163, on the death of a member, the board must transfer the deceased member's share or interest in the 10 co-operative to -- (a) the personal representative of the deceased member; or (b) the person that the deceased's personal representative specifies in an application made to the co-operative within 3 months after the death of the member. 15 77. Transfer of small shareholdings and interests on death (1) If the total value of a deceased member's shares or interest in a co-operative is less than $10 000 (or such other amount as may be prescribed), the board may, on the basis of such evidence as it considers sufficient, transfer the shares or interest in 20 accordance with whichever of the following paragraphs is appropriate -- (a) if the member or person dies testate, to the person who appears to the board to be entitled to the shares or interest under the will of the deceased member or 25 person; (b) if the member or person dies intestate, to any person who appears to the board to be entitled to obtain a grant of administration of the estate of the deceased and that person must then hold the shares or interest on the same 30 trusts as if he or she had obtained that grant. page 52 [Draft Bill for public comment]

Co-operatives Bill 2006 Membership Part 4 Disputes involving members Division 4 s. 78 (2) A transfer must not be made under this section after evidence has been produced to the co-operative of the grant of letters of administration of the estate, or probate of the will, of the deceased member. 5 78. Value of shares and interests The value of the shares or interest of a deceased member must be determined for the purposes of this Division in accordance with the rules of the co-operative. 79. Co-operative protected 10 Any transfer of property made by the board of a co-operative in accordance with this Division is valid and effectual against any demand made on the co-operative by any other person. Division 4 -- Disputes involving members 80. Grievance procedure 15 (1) The rules of a co-operative must set out a grievance procedure for dealing with any dispute under the rules -- (a) between a member and another member; and (b) between a member and the co-operative. (2) A member may appoint any person to act on behalf of the 20 member in the grievance procedure. (3) The grievance procedure must allow for natural justice to be applied. (4) In this section and section 81 -- "member" includes any person who was a member not more 25 than 6 months before the dispute occurred. page 53 [Draft Bill for public comment]

Co-operatives Bill 2006 Part 4 Membership Division 5 Oppressive conduct of affairs s. 81 81. Application to Supreme Court (1) The Supreme Court may, on the application of a member of a co-operative, or a co-operative, make an order declaring and enforcing -- 5 (a) the rights or obligations of members of the co-operative between themselves; or (b) the rights or obligations of the co-operative and any member between themselves. (2) An order may be made under this section whether or not a right 10 of a proprietary nature is involved and whether or not the applicant has an interest in the property of the co-operative. (3) The Supreme Court may refuse to make an order on the application or may make an order for costs against a party, whether successful or not, if the Court is of the opinion that -- 15 (a) the issue raised in the application is trivial; or (b) having regard to the importance of the issue, the nature of the co-operative, any other available method of resolving the issue, the costs involved, lapse of time, acquiescence or any other relevant circumstance, it was 20 unreasonable to make the application; or (c) the unreasonable or improper conduct of a party -- (i) has been responsible for the making of the application; or (ii) has added to the cost of the proceedings. 25 Division 5 -- Oppressive conduct of affairs 82. Interpretation In this Division, a reference to a member of a co-operative includes, in the case of a co-operative that has a share capital, a reference to a person to whom a share in the co-operative has 30 been transmitted by will or by operation of law. page 54 [Draft Bill for public comment]

Co-operatives Bill 2006 Membership Part 4 Oppressive conduct of affairs Division 5 s. 83 83. Application of Division This Division does not apply in respect of anything done under Part 6. 84. Who may apply for court order 5 The following persons may apply to the Supreme Court for an order under this Division -- (a) the Registrar; (b) a member who believes that the affairs of the co-operative are being conducted in a way that is -- 10 (i) oppressive or unfairly prejudicial to, or unfairly discriminatory against, a member; or (ii) contrary to the interests of the members as a whole; (c) a member who believes that an act or omission, or a 15 proposed act or omission, by or on behalf of the co-operative, or a resolution, or a proposed resolution, of members, was or would be -- (i) oppressive or unfairly prejudicial to, or unfairly discriminatory against, a member; or 20 (ii) contrary to the interests of the members as a whole. 85. Orders that the Supreme Court may make On application under this Division, the Supreme Court may make any order that it considers appropriate including (without 25 being limited to) one or more of the following orders -- (a) an order that the Registrar appoint an administrator of the co-operative; (b) an order that the co-operative be wound up; (c) an order for regulating the conduct of affairs of the 30 co-operative in the future; page 55 [Draft Bill for public comment]

Co-operatives Bill 2006 Part 4 Membership Division 5 Oppressive conduct of affairs s. 86 (d) an order for the repayment of the member's shares in accordance with the provisions of this Act for repayment of share capital; (e) an order for the purchase of the shares of any member 5 by the co-operative and for the reduction accordingly of the co-operative's capital; (f) an order directing the co-operative to institute, prosecute, defend or discontinue specified proceedings, or authorising a member or members of the co-operative 10 to institute, prosecute, defend or discontinue specified proceedings in the name and on behalf of the co-operative; (g) an order appointing a receiver or a receiver and manager of property of the co-operative; 15 (h) an order restraining a person from engaging in specified conduct or from doing a specified act or thing; (i) an order directing a co-operative to become registered as a company under the Corporations Act; (j) an order requiring a person to do a specified act or thing; 20 (k) an order as to costs. 86. Basis on which Supreme Court makes orders The Supreme Court may make an order under this Division if it considers that -- (a) the affairs of a co-operative are being conducted in a 25 way that is -- (i) oppressive or unfairly prejudicial to, or unfairly discriminatory against, a member (the "oppressed member"), whether or not in the capacity of a member; or 30 (ii) contrary to the interests of the members as a whole; or page 56 [Draft Bill for public comment]

Co-operatives Bill 2006 Membership Part 4 Oppressive conduct of affairs Division 5 s. 87 (b) an act or omission, or a proposed act or omission, by or on behalf of a co-operative, or a resolution, or a proposed resolution, of members of a co-operative, was or would be -- 5 (i) oppressive or unfairly prejudicial to, or unfairly discriminatory against, a member (the "oppressed member") whether or not in the capacity of a member; or (ii) contrary to the interests of the members as a 10 whole. 87. Winding up need not be ordered if oppressed members prejudiced The Supreme Court need not make an order under this Division for the winding up of a co-operative if the Court considers that 15 the winding up of the co-operative would unfairly prejudice an oppressed member. 88. Application of winding up provisions If an order that a co-operative be wound up is made under this Division, the provisions of this Act relating to the winding up of 20 co-operatives apply, with any changes that are necessary, as if the order had been made on an application filed in the Supreme Court by the co-operative. 89. Changes to rules (1) If an order under this Division makes an alteration to the rules 25 of a co-operative -- (a) the alteration has effect as if it had been properly made by special resolution of the co-operative; and (b) the co-operative must not (despite any other provisions of this Act) without the leave of the Supreme Court 30 make any further alteration to the rules inconsistent with the provisions of the order. page 57 [Draft Bill for public comment]

Co-operatives Bill 2006 Part 4 Membership Division 6 Proceedings on behalf of a co-operative by members and others s. 90 (2) On receiving a copy of an order altering the rules of a co-operative the Registrar must register the alteration. 90. Copy of order to be lodged with Registrar An applicant for an order under this Division must lodge an 5 office copy of the order with the Registrar within 14 days after it is made. Penalty: a fine of $1 000. Division 6 -- Proceedings on behalf of a co-operative by members and others 10 91. Bringing, or intervening in, proceedings on behalf of a co-operative (1) A person may bring proceedings on behalf of a co-operative, or intervene in proceedings to which a co-operative is a party for the purpose of taking responsibility on behalf of the 15 co-operative for those proceedings, or for a particular step in those proceedings, (for example, compromising or settling them), if -- (a) the person is -- (i) a member, former member, or person entitled to 20 be registered as a member, of the co-operative or of a related corporation; or (ii) an officer or former officer of the co-operative; or (iii) the Registrar; 25 and (b) the person is acting with leave granted under section 92. (2) Proceedings brought on behalf of a co-operative may be brought in the co-operative's name. page 58 [Draft Bill for public comment]

Co-operatives Bill 2006 Membership Part 4 Proceedings on behalf of a co-operative by members and Division 6 others s. 92 92. Applying for and granting leave (1) A person referred to in section 91(1)(a) may apply to the Supreme Court for leave to bring, or to intervene in, proceedings. 5 (2) The Supreme Court may grant the application if it is satisfied that -- (a) it is probable that the co-operative will not itself bring the proceedings, or properly take responsibility for them, or for a step in them; and 10 (b) the applicant is acting in good faith; and (c) it is in the best interests of the co-operative that the applicant be granted leave; and (d) if the applicant is applying for leave to bring proceedings, there is a serious question to be tried; and 15 (e) either -- (i) at least 14 days before making the application, the applicant gave written notice to the co-operative of the intention to apply for leave and of the reasons for applying; or 20 (ii) it is appropriate to grant leave even if subparagraph (i) is not satisfied. 93. Substitution of another person for the person granted leave (1) Any of the following persons may apply to the Supreme Court for an order that they be substituted for a person to whom leave 25 has been granted under section 92 -- (a) a member, former member, or person entitled to be registered as a member, of the co-operative or a related corporation; (b) an officer, or former officer, of the co-operative; 30 (c) the Registrar. page 59 [Draft Bill for public comment]

Co-operatives Bill 2006 Part 4 Membership Division 6 Proceedings on behalf of a co-operative by members and others s. 94 (2) The application may be made whether or not the other person has already brought the proceedings or made the intervention. (3) The Supreme Court may make the order if it is satisfied that -- (a) the applicant is acting in good faith; and 5 (b) in all the circumstances, it is appropriate to make the order. (4) An order substituting one person for another person has the effect that -- (a) the grant of leave is taken to have been made in favour 10 of the substituted person; and (b) if the other person has already brought the proceedings or intervened, the substituted person is taken to have brought those proceedings or to have made that intervention. 15 94. Effect of ratification by members (1) A ratification or approval of conduct by members of a co-operative -- (a) does not prevent a person from bringing or intervening in proceedings with leave under section 92 or from 20 applying for leave under that section; and (b) does not have the effect that proceedings brought or intervened in with leave under section 92 must be decided in favour of the defendant, or that an application for leave under that section must be refused. 25 (2) The Supreme Court may take into account a ratification or an approval of the conduct by members of a co-operative in deciding what order or judgment (including as to damages) to make in proceedings brought or intervened in with leave under section 92 or in relation to an application for leave under that 30 section. page 60 [Draft Bill for public comment]

Co-operatives Bill 2006 Membership Part 4 Proceedings on behalf of a co-operative by members and Division 6 others s. 95 (3) In taking a ratification or approval into account under subsection (2), the Supreme Court may have regard to -- (a) how well-informed about the conduct the members were when deciding whether to ratify or approve that conduct; 5 and (b) whether the members who ratified or approved the conduct were acting for proper purposes. 95. Leave to discontinue, compromise or settle proceedings brought, or intervened in, with leave 10 Proceedings brought or intervened in with leave must not be discontinued, compromised or settled without the leave of the Supreme Court. 96. General powers of the Supreme Court (1) The Supreme Court may make any order, and give any 15 direction, that it thinks just in relation to proceedings brought or intervened in with leave, or in relation to an application for leave, including -- (a) interim orders; and (b) directions about the conduct of the proceedings, 20 including requiring mediation; and (c) an order directing the co-operative, or an officer of the co-operative, to do, or not to do, any act; and (d) an order appointing an independent person to investigate, and report to the Supreme Court, on -- 25 (i) the financial affairs of the co-operative; or (ii) the facts or circumstances that gave rise to that cause of action the subject of the proceedings; or (iii) the costs incurred in the proceedings and the person granted leave. 30 (2) A person appointed by the Supreme Court under subsection (1)(d) is entitled, on giving reasonable notice to the page 61 [Draft Bill for public comment]

Co-operatives Bill 2006 Part 4 Membership Division 6 Proceedings on behalf of a co-operative by members and others s. 97 co-operative, to inspect and make copies of any books of the co-operative for any purpose connected with their appointment. 97. Power of Supreme Court to make costs order At any time, the Supreme Court may, in relation to proceedings 5 brought or intervened in with leave under section 92 or an application for leave under that section, make any orders it thinks just about the costs of the person who applied for or was granted leave, of the co-operative or of any other party to the proceedings or application, including an order requiring 10 indemnification for costs. page 62 [Draft Bill for public comment]

Co-operatives Bill 2006 Rules Part 5 s. 98 Part 5 -- Rules 98. Effect of rules (1) The rules of a co-operative have the effect of a contract under seal -- 5 (a) between the co-operative and each member; and (b) between the co-operative and each director, the principal executive officer and the secretary of the co-operative; and (c) between a member and each other member. 10 (2) Under the contract, each of those persons agrees to observe and perform the provisions of the rules as in force for the time being so far as those provisions apply to that person. 99. Content of rules (1) The rules of a co-operative must state or otherwise make 15 provision for the matters specified in Schedule 1. (2) The rules must be divided into paragraphs numbered consecutively. (3) The rules may state the objects of the co-operative. (4) The rules may incorporate any provision of the model rules. 20 (5) The rules may provide for the co-operative to impose a fine, payable to the co-operative, on a member for an infringement of the rules. (6) If the rules provide for the imposition of a fine, the rules must specify the maximum fine that may be imposed on a member. 25 (7) The maximum fine fixed by the rules must not be more than an amount prescribed by the regulations as the maximum fine. (8) The rules may contain other provisions not inconsistent with this Act. page 63 [Draft Bill for public comment]

Co-operatives Bill 2006 Part 5 Rules s. 100 100. Purchase and inspection of copy of rules (1) A member is entitled to obtain from a co-operative a copy of its rules on payment of the amount required by the rules of the co-operative or, if the rules do not prescribe an amount, on 5 payment of $5. (2) The amount required by the rules must not be more than the fee prescribed by the regulations for obtaining a copy of the rules from the Registrar. (3) A person is entitled to obtain from the Registrar a copy of the 10 rules of a co-operative on payment of the fee prescribed by the regulations. 101. False copies of rules (1) A person who gives to a member of a co-operative or to a person intending or applying to become a member of a 15 co-operative a copy of any rules or any alterations of rules, other than those which have been duly registered, representing that they are binding on the members of the co-operative is guilty of an offence. Penalty: a fine of $1 000. 20 (2) A person who alters any of the rules of a co-operative after they have been registered and circulates them representing that they have been duly registered when they have not been is guilty of an offence. Penalty: a fine of $1 000. 25 102. Model rules (1) The regulations may prescribe model rules. (2) The model rules may make provision for any matter for which the rules of a co-operative may make provision. (3) If the model rules provide for a matter and the rules of a 30 co-operative of the class to which the model rules apply do not page 64 [Draft Bill for public comment]

Co-operatives Bill 2006 Rules Part 5 s. 103 provide for that matter, the provision of the model rules relating to that matter is to be taken to be included in the rules of the co-operative. 103. Rules can only be altered in accordance with this Act 5 The rules of a co-operative cannot be altered except in accordance with this Act. 104. Approval of alteration of rules (1) A proposed alteration of the rules of a co-operative must be approved by the Registrar before the resolution altering the rules 10 is passed by the co-operative or the board of the co-operative. (2) A draft of the proposed alteration must be submitted to the Registrar at least 21 days (or a shorter period the Registrar may allow in a particular case) before -- (a) the notice of the proposed special resolution altering the 15 rules is due to be given to the members by the co-operative; or (b) the resolution is due to be passed by the board of the co-operative. (3) The proposed alteration submitted under subsection (2) must be 20 accompanied by a written statement specifying the date on which the notice is due to be given to members or the resolution is due to be passed by the board, as the case may be. (4) The proposed alteration must -- (a) be in accordance with section 99; and 25 (b) be in a form that may reasonably be approved; and (c) be accompanied by a statement setting out the reasons for the alteration. (5) The Registrar may -- (a) approve the proposed alteration as submitted; or page 65 [Draft Bill for public comment]

Co-operatives Bill 2006 Part 5 Rules s. 105 (b) approve a different alteration to that submitted; or (c) refuse to approve the proposed alteration. (6) Subject to subsection (7), the Registrar approves a proposed alteration by giving written notice of the approval to the 5 co-operative. (7) The Registrar is taken to have approved a proposed alteration as submitted to the Registrar unless at least 5 days before the date specified in the written statement submitted under subsection (3), the Registrar gives written notice to the 10 co-operative that the Registrar -- (a) has approved a different alteration to that submitted; or (b) has refused to approve the proposed alteration; or (c) is still considering the matter. 105. Alteration by special resolution 15 The rules of a co-operative must be altered by special resolution unless this Act provides otherwise. 106. Alteration by resolution of board (1) The rules of a co-operative may be altered by a resolution passed by the board if the alteration does no more than give 20 effect to a requirement, restriction or prohibition imposed under the authority of this Act. (2) If the rules of a co-operative are altered under this section, the co-operative must cause the alteration to be notified in writing to its members as soon as practicable after the alteration takes 25 effect and in any event not later than the day when notice is given to the members of the next annual general meeting of the co-operative after the alteration takes effect. page 66 [Draft Bill for public comment]

Co-operatives Bill 2006 Rules Part 5 s. 107 107. Alteration does not take effect until registered (1) An alteration of the rules of a co-operative does not take effect unless and until it is registered by the Registrar. (2) An application for registration of an alteration must -- 5 (a) be made in a form approved by the Registrar; and (b) be made within 28 days, or a shorter or longer period prescribed by the regulations, after the resolution to alter the rules is passed; and (c) be accompanied by a consolidated copy of the rules of 10 the co-operative, including the alteration. (3) The Registrar must register the alteration unless -- (a) the Registrar is satisfied that the alteration is contrary to this Act; or (b) the Registrar has other reasonable cause to refuse to 15 register the alteration. (4) A certificate of registration of an alteration of the rules of a co-operative given by the Registrar is, in favour of any person advancing money to the co-operative on the faith of the certificate or in favour of any guarantor of that advance, 20 evidence that the alteration in the rules was properly made. 108. Appeal against refusal to approve alteration A co-operative may appeal to the Supreme Court against a failure of the Registrar to approve an alteration of its rules. 109. Appeal against refusal to register 25 A co-operative may appeal to the Supreme Court against a failure of the Registrar to register an alteration of its rules. 110. Supreme Court's powers on appeal The Supreme Court may make any order it considers appropriate to dispose of an appeal under section 108 or 109. page 67 [Draft Bill for public comment]

Co-operatives Bill 2006 Part 6 Active membership Division 1 Definitions s. 111 Part 6 -- Active membership Division 1 -- Definitions 111. Meaning of "active membership resolution" In this Part -- 5 "active membership resolution" has the meaning given in section 113(2). 112. What is active membership For the purposes of this Act, a member of a co-operative is an active member of the co-operative if the member -- 10 (a) uses or supports an activity of, or maintains a relationship or an arrangement with, the co-operative, for carrying on a primary activity of the co-operative, in the way and to the extent that the rules of the co-operative provide is sufficient to establish active 15 membership; or (b) maintains any other relationship or arrangement with the co-operative for carrying on a primary activity of the co-operative that the regulations provide is sufficient to establish active membership. 20 113. What are active membership provisions and resolutions (1) Active membership provisions in the rules of a co-operative are provisions in the rules that state -- (a) which of the activities of the co-operative are the primary activities of the co-operative; and 25 (b) the way in which and the extent to which a member of the co-operative must use or support an activity of, or maintain a relationship or an arrangement with, the co-operative for carrying on a primary activity of the co-operative, in order to establish active membership of 30 the co-operative. page 68 [Draft Bill for public comment]

Co-operatives Bill 2006 Active membership Part 6 Rules to contain active membership provisions Division 2 s. 114 (2) An active membership resolution is a resolution that would, if given effect to, make or amend active membership provisions in the rules of a co-operative. Division 2 -- Rules to contain active membership provisions 5 114. Number of primary activities required A co-operative must have at least one primary activity. 115. Rules to contain active membership provisions The board of a co-operative must ensure that the rules of the co-operative contain active membership provisions in 10 accordance with this Part. 116. Factors and considerations for determining primary activities etc. (1) The board of a co-operative must ensure that the relevant factors and considerations are taken into account in deciding -- 15 (a) which of the activities of a co-operative are its primary activities; and (b) the way and extent to which a member is required to use or support an activity of, or maintain a relationship or an arrangement with, a co-operative, for carrying on a 20 primary activity of the co-operative, in order to establish active membership of the co-operative. (2) The relevant factors and considerations are -- (a) the primary activity or, if more than one, the primary activities taken together must form the basic purpose for 25 which the co-operative exists and a significant contribution to the business of the co-operative; and (b) the way and extent of the required utilisation, support, relationship or arrangement should be reasonable when considered in relation to the activities of the 30 co-operative as a whole; and page 69 [Draft Bill for public comment]

Co-operatives Bill 2006 Part 6 Active membership Division 2 Rules to contain active membership provisions s. 117 (c) any other factors and considerations that are prescribed by the regulations. (3) The regulations may -- (a) provide for the matters to be taken into account in 5 deciding whether an activity makes a significant contribution to the business of the co-operative; and (b) specify minimum percentages of turnover, minimum amounts of income or minimum amounts of business necessary to constitute that significant contribution. 10 (4) Nothing in this section limits the right of active members other than the board of the co-operative to propose an active membership resolution. 117. Active membership provisions -- trading co-operatives The only active membership provisions that are permitted to be 15 contained in the rules of a trading co-operative are -- (a) provisions requiring a member to use an activity of the co-operative for carrying on a primary activity specified in the provisions to establish active membership; and (b) any other active membership provisions that the 20 Registrar may approve. 118. Regular subscription -- active membership of non-trading co-operative (1) Active membership provisions for a non-trading co-operative may provide that the payment of a regular subscription by a 25 member of the co-operative, to be applied to a primary activity of the co-operative, is sufficient to establish active membership of the co-operative. (2) A member of a co-operative who would, on payment of the subscription, be an active member of a co-operative is taken to 30 be an active member until the subscription is payable. page 70 [Draft Bill for public comment]

Co-operatives Bill 2006 Active membership Part 6 Active membership resolutions Division 3 s. 119 Division 3 -- Active membership resolutions 119. Notice of meeting (1) At least 21 days notice must be given to members of a co-operative of a meeting at which an active membership 5 resolution is to be proposed. (2) The notice must, in addition to the other matters required under this Act to be stated -- (a) state whether the member is eligible to vote on the resolution; and 10 (b) contain the full text of the proposed resolution; and (c) contain a copy of section 123. (3) If the notice to a member states that he or she is not eligible to vote on a resolution, the member may, after endeavouring to settle the matter with the co-operative, apply to the Registrar for 15 a determination as to the member's eligibility. (4) The Registrar may determine the matter, on the information available to the Registrar, by direction in writing to the co-operative and the member. (5) The Registrar's determination as to eligibility has effect but 20 only if given before the meeting concerned is due to be held. 120. Eligibility to vote on active membership resolution The only members of a co-operative who are eligible to vote on an active membership resolution when the rules do not contain active membership provisions are the members who would be 25 active members if the resolution had already taken effect. page 71 [Draft Bill for public comment]

Co-operatives Bill 2006 Part 6 Active membership Division 4 Cancellation of membership of inactive or missing members s. 121 121. Eligibility of directors to vote on proposal at board meeting If the board of a co-operative is meeting to consider a proposal to submit an active membership resolution to a meeting of the co-operative -- 5 (a) subject to paragraph (b), a director is only eligible to vote on the proposal if he or she would be eligible to vote on the resolution at the meeting of the co-operative; or (b) if 2 directors or less, whether or not they are present at 10 the meeting of the board, would be eligible to vote on the resolution at the meeting of the co-operative, all the directors are eligible to vote on that proposal at the meeting of the board. 122. Other entitlements of members not affected 15 A provision of this Division that renders a member of a co-operative ineligible to vote on a resolution does not affect any other right, entitlement, obligation or duty of the member as a member. Division 4 -- Cancellation of membership of inactive or 20 missing members 123. Cancellation of membership of inactive or missing member and transitional provision (1) In this section -- "required period", in relation to a co-operative, means -- 25 (a) 3 years; or (b) a shorter period if specified in the rules of the co-operative. page 72 [Draft Bill for public comment]

Co-operatives Bill 2006 Active membership Part 6 Cancellation of membership of inactive or missing members Division 4 s. 124 (2) Unless this subsection does not apply because of subsection (3), the board of a co-operative must declare the membership of a member cancelled if -- (a) the whereabouts of the member are not presently known 5 to the co-operative and have not been known to the co-operative for at least the required period before that time; or (b) the member is not presently an active member of the co-operative and has not been an active member of the 10 co-operative at any time during the required period immediately before that time. (3) Subsection (2) applies to a member only if he or she was a member of the co-operative throughout the required period. (4) Subsection (2)(b) does not apply to a transferred co-operative 15 until a period of 3 years has passed since the co-operative was registered under this Act. (5) Whether a member was an active member at a particular time in the past is to be decided by reference to the active membership provisions in force at that time. 20 (6) The board's declaration under this section has the effect of cancelling the membership concerned. (7) A person may apply to the Supreme Court for an order under section 129 in relation to the cancellation of the person's membership under this section. 25 124. Share to be forfeited if membership cancelled (1) If a co-operative has a share capital, the board of the co-operative must declare the shares of a member to be forfeited at the same time as the member's membership is cancelled under section 123. page 73 [Draft Bill for public comment]

Co-operatives Bill 2006 Part 6 Active membership Division 4 Cancellation of membership of inactive or missing members s. 125 (2) The board's declaration has the effect of forfeiting the shares concerned. (3) Nothing in this section affects the operation of section 130. 125. Failure to cancel membership -- offence by director 5 If the board of a co-operative fails to cancel the membership of a member as required by this Part, a director of the co-operative who did not use all due diligence to prevent the failure commits an offence. Penalty: a fine of $2 000. 10 126. Deferral of forfeiture by board (1) The board of a co-operative may by resolution defer cancellation of a member's membership for a period of up to 12 months (the "deferral period") -- (a) if the board has reasonable grounds to believe that a 15 member has ceased to be an active member because of unusual circumstances that prevent the member fulfilling his or her active membership obligations; or (b) if -- (i) the board thinks that during the deferral period 20 an active membership resolution may be put to the members of the co-operative; and (ii) the effect of the resolution would be relevant to the question of whether the member is an active member. 25 (2) The board of the co-operative must review the resolution to defer within the deferral period to determine if a further resolution should be made under subsection (1). page 74 [Draft Bill for public comment]

Co-operatives Bill 2006 Active membership Part 6 Cancellation of membership of inactive or missing members Division 4 s. 127 127. Cancellation of membership prohibited in certain circumstances Unless the regulations otherwise provide, the board of a co-operative must not declare the membership of a member to 5 be cancelled under this Part -- (a) if the co-operative is insolvent; or (b) if the co-operative is under administration under the Corporations Act Part 5.3A as applying under this Act; or 10 (c) if a compromise or an arrangement is being administered in relation to the co-operative; or (d) if the co-operative is in the course of being wound-up; or (e) if an appointment of a receiver, whether or not a receiver 15 and manager, of any property of the co-operative is in force; or (f) if the co-operative has, for the purposes of being registered as a company under the Corporations Act, lodged with the Registrar a copy of the entry made in 20 the minute book of the co-operative under section 190; or (g) in other circumstances as may be prescribed by the regulations. 128. Notice of intention to cancel membership 25 (1) Unless subsection (2) applies, the board of a co-operative must ensure that not less than 28 days notice of its intention to declare the membership of a member to be cancelled is given to the member. (2) Notice is not required to be given under this section if -- 30 (a) the member's whereabouts are unknown to the co-operative; and page 75 [Draft Bill for public comment]

Co-operatives Bill 2006 Part 6 Active membership Division 4 Cancellation of membership of inactive or missing members s. 129 (b) the amount required to be repaid to the member in relation to the cancelled membership, whether because of the cancellation of shares or otherwise, does not exceed the amount prescribed by the regulations, or if an 5 amount is not prescribed, $50. 129. Order of Supreme Court against cancellation (1) If the Supreme Court is satisfied that the cancellation of a member's membership under section 123 was or would be unreasonable, the Court may by order direct that the 10 membership should not have been cancelled or should not be cancelled. (2) While an order is in force under this section -- (a) the membership concerned is not required to be cancelled and any shareholding of the member is not 15 required to be forfeited; and (b) the person whose membership was cancelled is entitled to be reinstated as a member of the co-operative with all the rights and entitlements, including any shareholding, attaching to or arising from the former membership. 20 (3) Reinstatement of a member under this section is to be effected in accordance with the directions of the Supreme Court. 130. Repayment of amounts due because of cancelled membership (1) If the membership of a member of a co-operative is cancelled 25 under this Part, the co-operative must, within 12 months after the date of cancellation -- (a) repay to the former member an amount (the "repayable amount") made up of the amount paid up on the shares forfeited by the member at the time of cancellation less 30 any amount owed by the member to the co-operative at that time under the rules of the co-operative or any contract or otherwise; or page 76 [Draft Bill for public comment]

Co-operatives Bill 2006 Active membership Part 6 Cancellation of membership of inactive or missing members Division 4 s. 130 (b) apply the repayable amount under subsection (2) if -- (i) the board considers that repayment would adversely affect the financial position of the co-operative; or 5 (ii) the board and the former member agree; or (c) in the case of a transferred co-operative the rules of which state how to calculate the amount owing to a former member at the time of cancellation of 10 membership, repay to the former member an amount in accordance with those rules. (2) The repayable amount may be applied in one of the following ways -- (a) if the co-operative is a deposit-taking co-operative, the 15 co-operative may apply the amount as a deposit by the former member with the co-operative, subject to the requirements of section 131 as to interest on the deposit; (b) the co-operative may issue debentures or co-operative capital units to the former member in satisfaction of the 20 amount; (c) the co-operative may appropriate the amount as a donation to the co-operative, but only if the former member consents in writing to the donation. (3) If the balance sheet of the co-operative last issued before the 25 cancellation of a member's membership disclosed a loss or deficiency, the paid up value of the member's shares may, for the purposes of calculating the repayable amount, be reduced as described in subsection (4). (4) The paid up value of the member's shares may be reduced by an 30 amount that bears to the amount of the loss or deficiency so disclosed the same proportion as the number of shares held by the member bore to the total number of shares held by all members of the co-operative at the time of cancellation. page 77 [Draft Bill for public comment]

Co-operatives Bill 2006 Part 6 Active membership Division 4 Cancellation of membership of inactive or missing members s. 131 (5) If the former member is subsequently readmitted to membership, any amount held by the co-operative under this section must, if the member so requests, be applied towards the cost of admission to membership, including any subscription for 5 share capital. (6) If -- (a) the co-operative cannot, after taking all reasonable action, find the former member; and (b) the amount otherwise required to be paid under this 10 section is less than the amount prescribed by the regulations, or if an amount is not prescribed, $50, the co-operative may retain that amount. 131. Interest on deposits, debentures and co-operative capital units 15 (1) This section applies when -- (a) the amount payable to a former member under section 74 or 130 is applied as a deposit with the co-operative; or (b) the co-operative allots or issues debentures or 20 co-operative capital units to the former member in satisfaction of that amount. (2) The deposit, debenture or co-operative capital unit bears interest during any period -- (a) in the case of a co-operative with share capital -- 25 (i) at the rate, or if there is more than one rate, at the higher or highest rate, of dividend payable for that period on the share capital of the co-operative; or (ii) if the rate of dividend payable for that period has 30 not been determined, at the rate, or the higher or highest rate, payable for the immediately page 78 [Draft Bill for public comment]

Co-operatives Bill 2006 Active membership Part 6 Cancellation of membership of inactive or missing members Division 4 s. 132 preceding period for which a rate has been decided; or (iii) if a rate of dividend has never been determined in relation to the share capital of the 5 co-operative, at the rate that the board of the co-operative considers reasonable; or (b) in the case of a co-operative without share capital, at the rate that the board of the co-operative considers 10 reasonable; or (c) if the rules provide for a rate to be payable that is higher than the rate applicable under paragraph (a) or (b), at that higher rate. (3) A former member may agree to the rate of interest being less 15 than that which would otherwise be payable under this section and may agree to no interest being paid. (4) The following provisions of the Corporations Act, as applied by section 255 of this Act, do not apply to an allotment or issue of debentures under this section -- 20 (a) Chapter 2L; (b) Chapter 6D. 132. Repayment of deposits, and redemption of debentures and co-operative capital units (1) A deposit, debenture or co-operative capital unit to which an 25 amount payable to a former member is applied under this Division or section 74(2) is to be repaid or redeemed, as the case may be, as soon as repayment or redemption would not, in the opinion of the board, adversely affect the financial position of the co-operative. 30 (2) The deposit, debenture or co-operative capital unit must in any case be repaid or redeemed within 10 years, or within any page 79 [Draft Bill for public comment]

Co-operatives Bill 2006 Part 6 Active membership Division 5 Entitlements of former members of trading co-operatives s. 133 shorter period that the rules of the co-operative may require, after cancellation of the member's membership. 133. Register of cancelled memberships A co-operative must keep a register stating the particulars, as 5 prescribed by the regulations, of persons whose membership has been cancelled under this Part. Division 5 -- Entitlements of former members of trading co-operatives 134. Application of Division 10 This Division only applies to trading co-operatives. 135. Former shareholders to be taken to be shareholders for certain purposes (1) Even though a person's shares in a co-operative have been forfeited under this Part, the person is to be taken to be the 15 holder of shares in the co-operative (the same in all respects as those that were forfeited) for the following purposes -- (a) the entitlements of a shareholder in relation to the purchase of shares in the co-operative pursuant to an offer described in section 294(a), (b) or (c) or the 20 purchase of all the shares in the co-operative, if the offer or purchase occurs within 2 years after the person's shares were forfeited; (b) the entitlement of a shareholder when the co-operative becomes registered as a company if the relevant special 25 resolution under section 311 is passed within 2 years after the person's shares were forfeited; (c) the entitlement of a shareholder to a distribution of surplus in a winding up of the co-operative that commences within 2 years after the person's shares were 30 forfeited. page 80 [Draft Bill for public comment]

Co-operatives Bill 2006 Active membership Part 6 Entitlements of former members of trading co-operatives Division 5 s. 136 (2) Subsection (1)(a) does not apply to -- (a) an offer described in section 294(a) or (c) that is made by another co-operative; or (b) the purchase of all the shares in the co-operative by 5 another co-operative. (3) Subsection (1)(c) does not apply if the winding up is for the purposes of a merger under Part 12 Division 1. (4) For the removal of doubt, it is declared that the entitlement under subsection (1)(a) of a person whose shares have been 10 forfeited does not include an entitlement to vote on any matter. (5) This section does not apply to a forfeited shareholding in a co-operative if section 136 operates to require that forfeited shareholding to be regarded as a forfeited shareholding in another co-operative. 15 136. Entitlements of former shareholders on mergers etc. (1) This section applies when a person's shares in a co-operative (the "original co-operative") are forfeited under this Part and within 2 years after that forfeiture -- (a) the original co-operative becomes a subsidiary of 20 another co-operative (the "new co-operative"); or (b) another co-operative (the "new co-operative") is created as a result of a merger under Part 12 Division 1 involving the original co-operative; or (c) the engagements of the original co-operative are 25 transferred to another co-operative (the "new co-operative") under Part 12 Division 1. (2) A person referred to in subsection (1) is, for the purposes of the operation of section 135, and the further operation of this section, taken to have held shares in the new co-operative and as 30 having had those shares in the new co-operative forfeited under this Part when the person's shares in the original co-operative were forfeited. page 81 [Draft Bill for public comment]

Co-operatives Bill 2006 Part 6 Active membership Division 5 Entitlements of former members of trading co-operatives s. 137 (3) The extent of the forfeited shareholding in the new co-operative is determined as follows -- (a) if the entitlement of active members of the original co-operative in the circumstances concerned is solely an 5 entitlement to be allotted shares in the new co-operative, the forfeited shareholding in the new co-operative is the shareholding to which the person would have been entitled had the person's shares in the original co-operative not been forfeited; 10 (b) in any other case, the forfeited shareholding in the new co-operative is the shareholding that is the same in all respects as the forfeited shareholding in the original co-operative. (4) The determination under subsection (3)(a) of the person's 15 shareholding in the new co-operative must be made -- (a) solely on the basis of the person's shareholding in the original co-operative when the shares were forfeited or, in a further operation of this section in respect of the person, when the person was first to be regarded as 20 having a forfeited shareholding in the original co-operative; and (b) without regard to any additional shareholding in the original co-operative to which the person would have become entitled had the shares not been forfeited, 25 whether as a result of any bonus share issue or otherwise. 137. Set off of amounts repaid etc. on forfeited shares (1) If a person has an entitlement because of the operation of section 136, the entitlement operates to end any liability of the 30 co-operative -- (a) to repay to the person under section 130 any amount for the forfeited shares concerned; or page 82 [Draft Bill for public comment]

Co-operatives Bill 2006 Active membership Part 6 Entitlements of former members of trading co-operatives Division 5 s. 138 (b) in respect of a deposit held by the co-operative, or debentures allotted or issued to the person, or co-operative capital units issued under section 130 for the forfeited shares concerned, except a liability to pay 5 interest that is payable but unpaid. (2) If an amount has been repaid to a person under section 130 or 132, the amount repaid is to be set off against any entitlement of the person under section 135 for the forfeited shares concerned. 10 (3) If the amount repaid cannot be set off against the entitlement because the entitlement is not, or is only partly, an entitlement to money, the entitlement is lost unless the person pays to the co-operative the amount repaid to the person and does so within the period required under subsection (4). 15 (4) If the circumstances referred to in subsection (3) arise, the co-operative concerned must -- (a) give written notice of the matter by post to the person concerned at the person's address last known to the co-operative, specifying a period of not less than 20 28 days after the notice is given during which any amount repaid must be paid to the co-operative; and (b) publish a general notice to that effect in a newspaper circulating generally in the district in which the registered office of the co-operative is situated. 25 138. Entitlement to distribution from reserves A person whose membership of a co-operative has been cancelled under this Part is taken to still be a member for the purposes of any distribution from reserves of the co-operative that takes place within 2 years after the person's membership 30 was cancelled. page 83 [Draft Bill for public comment]

Co-operatives Bill 2006 Part 6 Active membership Division 5 Entitlements of former members of trading co-operatives s. 139 139. Regulations may exempt co-operatives from provisions The regulations may exempt a co-operative from a provision of this Division. page 84 [Draft Bill for public comment]

Co-operatives Bill 2006 Shares Part 7 Nature of share Division 1 s. 140 Part 7 -- Shares Division 1 -- Nature of share 140. Nature of share in co-operative (1) A share or other interest in a co-operative -- 5 (a) is personal property; and (b) is transferable or transmissible as provided by this Act and the rules of the co-operative; and (c) is, subject to the rules of the co-operative, capable of devolution by will or by operation of law. 10 (2) Subject to subsection (1) -- (a) the laws applying to ownership of and dealing with personal property apply to a share or other interest of a member in a co-operative as they apply to other property; and 15 (b) equitable interests in respect of a share or other interest of a member in a co-operative may be created, dealt with and enforced as in the case of other personal property. Division 2 -- Disclosure 141. Disclosure to intending shareholders in trading co-operative 20 (1) The board of a trading co-operative must give a person who intends to acquire shares in the co-operative and is not already a shareholder in the co-operative a current disclosure statement that -- (a) has been approved by the Registrar under section 16(5); 25 or (b) complies with section 142 and has been lodged by the co-operative with the Registrar. page 85 [Draft Bill for public comment]

Co-operatives Bill 2006 Part 7 Shares Division 2 Disclosure s. 142 (2) The disclosure statement must be given before the person becomes bound to acquire the shares. (3) The disclosure statement is in addition to any information required to be provided to the person under Part 4. 5 (4) A disclosure statement is current until whichever of the following happens first after the statement is prepared -- (a) a change in the rights or liabilities attaching to any class of share in the co-operative; (b) a significant change in the financial position or 10 prospects of the co-operative; (c) any of the next financial, director's or auditor's reports required to be prepared under section 230 become available. (5) If a disclosure statement stops being a current disclosure 15 statement because of a change referred to in subsection (4)(a) or (b), the co-operative must, within 14 days after the change -- (a) give the Registrar written notice that the disclosure statement is no longer current because of a change referred to in subsection (4)(a) or (b), as the case may 20 be; or (b) file a current disclosure statement with the Registrar that complies with section 142. 142. Content of disclosure statement to intending shareholders (1) A disclosure statement given to a person under section 141(1) 25 must contain -- (a) a statement of the rights and liabilities attaching to shares; and (b) a statement that the person may request to either inspect at the co-operative's nearest office, or be sent -- 30 (i) the last annual report of the co-operative under section 240(2); and page 86 [Draft Bill for public comment]

Co-operatives Bill 2006 Shares Part 7 Issues of shares Division 3 s. 143 (ii) any other relevant information about the financial position and prospects of the co-operative if there has been a significant change since the date of the last annual report; 5 and (c) any other information the Registrar directs. (2) If a person who has received a disclosure statement makes a request under subsection (1)(b), the co-operative must comply with that request. 10 143. Exemptions for disclosure statements (1) The Registrar may, by order published in the Gazette, exempt the board of a trading co-operative, or the boards of a class of trading co-operatives from a requirement under section 141 or 142. 15 (2) An exemption under subsection (1) may be given only if the Registrar is satisfied that compliance with the requirement would be inappropriate in the circumstances or would impose an unreasonable burden. Division 3 -- Issues of shares 20 144. Shares -- general (1) The share capital of a co-operative varies in amount according to the nominal value of shares from time to time subscribed. (2) Shares are to be of a fixed amount which is to be specified in the rules of the co-operative. 25 (3) A co-operative may have more than one class of shares provided the shareholding and the rights of shareholders comply with the co-operative principles. (4) Subject to this Part and Part 4, shares must not be issued to a non-member. page 87 [Draft Bill for public comment]

Co-operatives Bill 2006 Part 7 Shares Division 3 Issues of shares s. 145 145. Application of Corporations Act for particular share subscriptions (1) If subsection (2) applies to shares of a co-operative, the shares are declared to be applied Corporations legislation matters for 5 the Corporations (Ancillary Provisions) Act 2001 Part 3 in relation to the Corporations Act sections 716(2), 722, 723(2), 724(1)(a) and (2)(a) and 734, subject to the following modifications -- (a) the provisions apply as if a co-operative were a 10 company; (b) a reference in the provisions to ASIC is to be read as a reference to the Registrar; (c) a reference in the provisions to a disclosure document is to be read as a reference to a disclosure statement, of 15 any type, under this Act; (d) a reference in the provisions to securities is to be read as a reference to shares; (e) any other modifications, within the meaning of the Corporations (Ancillary Provisions) Act 2001 Part 3, 20 that are prescribed by the regulations. (2) Shares in a co-operative are subject to the declaration under subsection (1) if -- (a) the shares are offered to persons who are not shareholders in the co-operative; or 25 (b) the invitation is made to persons who are not shareholders in the co-operative. 146. Minimum paid up amount (1) A share in a co-operative other than a transferred co-operative must not be allotted unless at least 10% of the nominal value of 30 the share has been paid. page 88 [Draft Bill for public comment]

Co-operatives Bill 2006 Shares Part 7 Issues of shares Division 3 s. 147 (2) Any balance unpaid for shares at the time of allotment must be paid in a way specified in the rules of the co-operative or permitted by this Act. (3) This section does not apply to a bonus share issued under 5 section 151 or 276. 147. Shares not to be issued at a discount A co-operative must not issue shares at a discount. 148. Issue of shares at a premium (1) A trading co-operative may issue shares at a premium. 10 (2) A premium may be in the form of cash or other valuable consideration. (3) If a trading co-operative issues shares for which it receives a premium, an amount equal to the total amount or value of the premiums on the shares must be transferred to a share premium 15 account. (4) The share premium account is to be treated as paid-up share capital of the trading co-operative and may be applied in any one or more of the following ways -- (a) in paying up unissued shares to be issued to members of 20 the co-operative as fully paid bonus shares; (b) in paying up, in whole or in part, the balance unpaid on shares previously issued to members of the co-operative; (c) in the payment of dividends, if those dividends are satisfied by the issue of shares to members of the 25 co-operative; (d) in writing off the expenses incurred in establishing the co-operative; (e) in providing for the premium payable on redemption of shares, debentures or co-operative capital units. page 89 [Draft Bill for public comment]

Co-operatives Bill 2006 Part 7 Shares Division 3 Issues of shares s. 149 149. Joint ownership of shares A share may be held by 2 or more persons jointly, unless the rules of the co-operative provide otherwise. 150. Members may be required to take up additional shares 5 (1) If authorised by the rules of the co-operative, the board of a trading co-operative may require a member to take up or subscribe for additional shares under a proposal approved by a special resolution of the co-operative. (2) The board of a trading co-operative may deduct amounts in 10 payment for additional shares from money payable to members for dealings with the co-operative, under a proposal approved by a special resolution of the co-operative. (3) A proposal to require a member to take up or subscribe for additional shares must -- 15 (a) be accompanied by a disclosure statement, approved by the Registrar, that explains the purpose for which the funds raised by the issue of the additional shares are to be used; and (b) clearly show the total number of additional shares to be 20 issued and the basis on which the shares are to be apportioned among members; and (c) be accompanied by a statement informing the member that the member may inform the board by notice on or before the date specified in the statement, being a date 25 before the passing of the special resolution, that the member resigns on the passing of the special resolution. (4) A proposal to deduct amounts in payment for additional shares from amounts payable to members for dealings with the trading co-operative must clearly show -- 30 (a) the basis on which the deductions are to be made; and (b) the time and way of making those deductions. page 90 [Draft Bill for public comment]

Co-operatives Bill 2006 Shares Part 7 Issues of shares Division 3 s. 151 (5) A proposal approved under this section is binding on -- (a) all members of the trading co-operative at the date of the passing of the special resolution, other than a member who has given a notice of resignation in accordance with 5 subsection (3)(c); and (b) all persons who become members of the trading co-operative after that date and before the total number of shares to be issued under the proposal has been issued. 10 (6) Sections 16 (except subsection (3)) and 29 apply to the approval of a disclosure statement under this section with any necessary changes and in particular as if any reference in section 16 to a formation meeting were a reference to the special resolution. (7) This section does not apply to the issue of bonus shares to a 15 member under section 276(2). 151. Bonus share issues (1) In addition to section 276(2) the rules of a trading co-operative may authorise the issue of bonus shares to members of the co-operative if the assets of the co-operative -- 20 (a) have been sold at a profit; or (b) have been revalued at a greater value than that disclosed before the revaluation in the books of the co-operative. (2) This section does not apply if the assets were acquired for resale at a profit. 25 152. Restrictions on bonus shares Bonus shares issued under section 151 may be issued in accordance with the rules of the co-operative, subject to the following restrictions -- (a) each issue must have been approved by a special 30 resolution of the co-operative; page 91 [Draft Bill for public comment]

Co-operatives Bill 2006 Part 7 Shares Division 3 Issues of shares s. 153 (b) they are to be issued as fully paid up shares with no payment required to be made by a member of the co-operative to whom they are issued; (c) they are to be issued only for shares of the same class of 5 shares that are fully paid up as at the date of issue of the bonus shares; (d) the total nominal value of bonus shares issued by a co-operative in any one year must not be more than 20%, or another percentage prescribed by the 10 regulations, of the nominal value of the issued share capital of the co-operative immediately before the date of issue of the bonus shares. 153. Notice about bonus shares Notice of the meeting or postal ballot at which a resolution is to 15 be proposed as a special resolution for the purpose of approving a bonus share issue must be accompanied by -- (a) a statement of the value of the assets concerned as disclosed in the books of the co-operative before the sale or revaluation; and 20 (b) if the issue arises from, or partly from, a sale of assets, a statement of the price for which the assets were sold; and (c) if the issue arises from, or partly from, a revaluation of assets, a certificate of value of the assets, being a 25 certificate given in relation to a valuation made not more than 12 months before the date of the notice by a person prescribed by the regulations or a person having qualifications prescribed by the regulations; and (d) particulars of acquisitions of shares in the co-operative 30 made within the 3 years immediately preceding the date of the notice by or on behalf of each of its directors and his or her spouse and the father, mother, children, page 92 [Draft Bill for public comment]

Co-operatives Bill 2006 Shares Part 7 Beneficial and non-beneficial interest in shares Division 4 s. 154 brothers and sisters of each such director and spouse; and (e) a certificate signed by 2 directors of the co-operative stating that to the best of their knowledge and belief the 5 issue of bonus shares would not be imprudent and that no circumstances are known to them as to why the issue should not take place. Division 4 -- Beneficial and non-beneficial interest in shares 154. Direction to disclose 10 The board of a co-operative may direct a person to disclose matters as described in section 155 if the person is -- (a) a member of the co-operative; or (b) a person named in a disclosure made in response to a previous direction under this section as having a relevant 15 interest in, or having given instructions about, shares in the co-operative. 155. Disclosure by member of relevant interests and instructions (1) A person given a direction under section 154 must, unless subsection (2) applies, disclose to the board -- 20 (a) full details of the person's relevant interest in the shares of the co-operative (the "relevant shares") and of the circumstances that gave rise to the interest; and (b) the name and address of each other person who has a relevant interest in the relevant shares together with full 25 details of -- (i) the nature and extent of the interest; and (ii) the circumstances that gave rise to the other person's interest; and page 93 [Draft Bill for public comment]

Co-operatives Bill 2006 Part 7 Shares Division 4 Beneficial and non-beneficial interest in shares s. 156 (c) the name and address of each person who has given the person instructions about -- (i) the acquisition or disposal of the shares; or (ii) the exercise of any voting or other rights attached 5 to the shares; or (iii) any other matter relating to the shares, together with full details of those instructions, including the date or dates on which they were given. Penalty: a fine of $3 000. 10 (2) A matter referred to in subsection (1)(b) or (c) need only be disclosed to the extent to which the matter is ascertainable by the person required to make the disclosure. (3) The disclosure must be made within the period of 5 days after the person is given the direction, unless within that period the 15 person applies in writing to the Registrar for an exemption from compliance with the direction. (4) The Registrar may, in writing, exempt a person from complying with a direction if the Registrar believes the direction is unjustified. 20 (5) If the Registrar refuses to give an exemption under subsection (4), the disclosure required by the direction must be made within the period of 5 days after the person receives written notice of that refusal. (6) A board that receives information from a person acting on a 25 direction given to the person by the board must pay to the person the fee, if any, prescribed by the regulations. 156. Registration as trustee etc. on death of owner of shares (1) A trustee, executor or administrator of the estate of a dead person who was the registered holder of a share in a 30 co-operative may be registered as the holder of the share as trustee, executor or administrator of that estate. page 94 [Draft Bill for public comment]

Co-operatives Bill 2006 Shares Part 7 Beneficial and non-beneficial interest in shares Division 4 s. 157 (2) A trustee, executor or administrator of the estate of a dead person who was entitled in equity to a share in a co-operative may, with the consent of the co-operative and of the registered holder of the share, be registered as the holder of the share as 5 trustee, executor or administrator of that estate. 157. Registration as administrator of estate on incapacity of shareholder (1) This section applies to a person (the "appointed person") who is appointed under a law of a State or Territory relating to the 10 administration of the estates of persons who, through mental or physical infirmity, are incapable of managing their affairs, to administer the estate of another person (the "incapable person"). (2) If the incapable person is the registered holder of a share in a 15 co-operative, the appointed person may be registered as the holder of that share as administrator of the estate of the incapable person. (3) If the incapable person is entitled in equity to a share in a co-operative, the appointed person may, with the consent of the 20 co-operative and of the registered holder of that share, be registered as the holder of the share as administrator of the estate of the incapable person. 158. Registration as Official Trustee in Bankruptcy (1) This section applies when a share in a co-operative that is the 25 property of a bankrupt vests by force of the Commonwealth Bankruptcy Act 1966 in the Official Trustee in Bankruptcy. (2) If the bankrupt is the registered holder of the share, the Official Trustee may be registered as the holder of the share as the Official Trustee in Bankruptcy. 30 (3) If the bankrupt is entitled in equity to the share, the Official Trustee may, with the consent of the co-operative and of the page 95 [Draft Bill for public comment]

Co-operatives Bill 2006 Part 7 Shares Division 5 Sale or transfer of shares s. 159 registered holder of the share, be registered as the holder of the share as the Official Trustee in Bankruptcy. 159. Liabilities of person registered as trustee or administrator (1) A person registered under section 156, 157 or 158 is, while so 5 registered, subject to the same liabilities in relation to the share as those to which the person would have been subject if the share had remained, or had been, registered in the name of the dead person, the incapable person or the bankrupt. (2) The person registered is subject to no other liabilities in relation 10 to the share. 160. Notice of trusts in register of members Shares held by a trustee under a particular trust may, with the consent of the co-operative, be marked in the register of members, directors and shares referred to in section 235(1)(a) in 15 a way that identifies the shares as being held under the trust. 161. No notice of trust except as provided by this Division Except as provided in this Division -- (a) no notice of a trust, whether express, implied or constructive, is to be entered on a register or be 20 receivable by the Registrar; and (b) no liabilities are affected by anything done under this Division; and (c) nothing done under this Division affects a co-operative with notice of a trust. 25 Division 5 -- Sale or transfer of shares 162. Sale or transfer of shares (1) A share in a co-operative cannot be sold or transferred except -- (a) in accordance with Part 4 Division 3 and section 163, on the death of a member; or page 96 [Draft Bill for public comment]

Co-operatives Bill 2006 Shares Part 7 Sale or transfer of shares Division 5 s. 163 (b) to a person appointed to administer the estate of a shareholder under a law relating to the administration of the estates of persons who, through mental or physical infirmity, are incapable of managing their affairs; or 5 (c) with the consent of the board, to any person if there are reasonable grounds for believing that the person will be an active member of the co-operative. (2) A share in a co-operative cannot be sold or transferred except in accordance with the rules of the co-operative. 10 163. Transfer on death of member (1) On the death of a member, the member's share in the co-operative cannot be transferred to a person other than an administrator or executor except with the consent of the board of the co-operative. 15 (2) The board may only give its consent under subsection (1) if there are reasonable grounds for believing that the person will be an active member of the co-operative. 164. Restriction on total shareholding The board of a non-trading co-operative must not consent under 20 section 162(1)(c) to the sale or transfer of a share if, as a result of the sale or transfer, the nominal value of the shares held by the purchaser or transferee would -- (a) in the case of a non-trading co-operative, be more than -- 25 (i) 20% of the nominal value of the share capital of the co-operative; or (ii) if another percentage is specified in the rules of the co-operative, that other percentage of the nominal value of the share capital of the 30 co-operative; or page 97 [Draft Bill for public comment]

Co-operatives Bill 2006 Part 7 Shares Division 6 Repurchase of shares s. 165 (b) in the case of a trading co-operative, be more than the maximum permissible level of share interest applying under section 283. 165. Transfer not effective until registered 5 A transferor of a share remains the holder of the share until the transferee is noted as the holder of the share in the register of members, directors and shares referred to in section 235(1)(a). 166. Non-members become members on registration Where a share in a co-operative is transferred to a non-member 10 under this Part or Part 4, the transferee becomes a member of the co-operative on the transferee being noted as a member in the register of members, directors and shares referred to in section 235(1)(a). Division 6 -- Repurchase of shares 15 167. Purchase and repayment of shares (1) The rules of a co-operative may authorise the co-operative to -- (a) purchase any share of a member in the co-operative at the request of the member; and (b) repay to a member, with the member's consent, all or 20 any part of the amount paid up on any share held by the member when the amount repaid is not required for the activities of the co-operative. (2) The amount paid by a co-operative under this section in purchasing shares or repaying an amount paid up on shares, or 25 both, in any financial year of the co-operative must not be more than the total of -- (a) 5% of the nominal value of the issued share capital of the co-operative immediately before the start of that financial year; and page 98 [Draft Bill for public comment]

Co-operatives Bill 2006 Shares Part 7 Repurchase of shares Division 6 s. 168 (b) the amount of any additional share capital of the co-operative subscribed for during that year. (3) The members of a co-operative may by special resolution exempt a co-operative from the operation of subsection (2) in 5 relation to a particular financial year, either unconditionally or on conditions. (4) The amount paid for a share when it is repurchased may be an amount decided by the board that is less than the nominal value of the share but only -- 10 (a) if the records of the co-operative disclose that the amount paid is the net shareholder's equity per share in the undertaking of the co-operative; or (b) in accordance with the rules of the co-operative. (5) This section does not apply if the member has resigned or has 15 been expelled from the co-operative or the member's membership has been otherwise cancelled. 168. Deposit, debentures or co-operative capital units instead of payment when share repurchased (1) If a co-operative repurchases a share of a member, the 20 co-operative may instead of paying the purchase price to the member -- (a) in the case of a deposit-taking co-operative, apply the amount as an interest bearing deposit by the member with the co-operative; or 25 (b) allot or issue debentures or co-operative capital units of the co-operative to the member in satisfaction of the amount. (2) Subsection (1) applies only if -- (a) the board considers that payment of the repurchase price 30 would adversely affect the financial position of the co-operative; or page 99 [Draft Bill for public comment]

Co-operatives Bill 2006 Part 7 Shares Division 6 Repurchase of shares s. 168 (b) the board and the member so agree. (3) The deposit, debenture or co-operative capital unit bears interest during any period -- (a) in the case of a co-operative with share capital -- 5 (i) at the rate (or, if there is more than one rate, at the higher or highest rate) of dividend payable for that period on the share capital of the co-operative; or (ii) if the rate of dividend payable for that period has 10 not been decided, at the rate (or the higher or highest rate) payable for the immediately preceding period for which a rate has been decided; or (iii) if a rate of dividend has never been decided for 15 the share capital of the co-operative, at the rate that the board of the co-operative considers reasonable; or (b) in the case of a co-operative without share capital, at the 20 rate that the board of the co-operative considers reasonable; or (c) if the rules provide for a rate to be payable that is higher than the rate applicable under paragraph (a) or (b), at the higher rate. 25 (4) The deposit, debenture or co-operative capital unit must be repaid to the member or redeemed, as the case may be, as soon as repayment or redemption would not, in the opinion of the board, adversely affect the financial position of the co-operative. 30 (5) The deposit, debenture or co-operative capital unit must in any case be repaid or redeemed within 10 years (or within any shorter period that the rules of the co-operative require) after the repurchase of the shares concerned. page 100 [Draft Bill for public comment]

Co-operatives Bill 2006 Shares Part 7 Repurchase of shares Division 6 s. 169 169. Cancellation of shares A co-operative must cancel any share purchased by or forfeited to the co-operative in accordance with this Act or the rules of the co-operative. page 101 [Draft Bill for public comment]

Co-operatives Bill 2006 Part 8 Voting and meetings Division 1 Voting entitlements s. 170 Part 8 -- Voting and meetings Division 1 -- Voting entitlements 170. Application of Part to voting The provisions of this Part applying to voting apply to voting on 5 all resolutions. 171. Voting (1) The right to vote attaches to membership and not shareholding. (2) Except as provided in subsections (3) and (4), each member has only one vote at a meeting of the co-operative. 10 (3) If its rules so provide, a member of a co-operative group may have the number of votes up to 5 at a general meeting that is specified in the rules. (4) If the rules so provide, the chairman has a second vote at a board meeting or general meeting. 15 (5) In the case of joint membership -- (a) the joint members have only one vote between them; and (b) that vote may be exercised, subject to the grant of a proxy or power of attorney, only by the joint member 20 determined in accordance with the rules. 172. Voting by proxy (1) If the rules so provide, voting may be by proxy at a general meeting. (2) The instrument of proxy may state the way in which a proxy is 25 to vote on a particular resolution. (3) The proxy must vote in the way authorised by an instrument of proxy referred to in subsection (2). page 102 [Draft Bill for public comment]

Co-operatives Bill 2006 Voting and meetings Part 8 Voting entitlements Division 1 s. 173 (4) The rules of a co-operative may limit the number of persons for which a person may act as a proxy on the same question. (5) A person cannot exercise more than one proxy vote during a vote on the same question unless the vote is conducted by poll 5 demanded under section 199. 173. Inactive members not entitled to vote and transitional provision (1) A member cannot vote if the member is not an active member of the co-operative. 10 (2) Subsection (1) does not apply in relation to a transferred co-operative during the 3 year period beginning on the transfer day. 174. Control of the right to vote (1) A person must not directly or indirectly control the exercise of 15 the right to vote of a member. Penalty: a fine of $12 000. (2) If a person controls the exercise of the right to vote of a member at a meeting of a co-operative -- (a) the vote of the member is invalid; and 20 (b) if the person is a member, the vote of the person is invalid. (3) Nothing in this section prevents the exercise of a vote by means of a proxy or power of attorney. 175. Effect of disposal of shares on voting rights 25 A member of a co-operative cannot vote if the member has sold or transferred, or disposed of the beneficial interest in, the member's shares, or has agreed to do so. page 103 [Draft Bill for public comment]

Co-operatives Bill 2006 Part 8 Voting and meetings Division 1 Voting entitlements s. 176 176. Effect of relevant share and voting interests on voting rights (1) A member of a co-operative cannot vote if another person, whether or not a member of the co-operative, has a relevant interest in any share held by the member or in the right to vote 5 of the member. (2) A member who cannot vote because of this section may apply to the Registrar to review the matter. (3) The Registrar may order that the member may vote if the Registrar is satisfied in the circumstances of the case that loss of 10 the right to vote would be unjust or unreasonable, and the order of the Registrar has effect accordingly. 177. Rights of representatives A person appointed under this Act to represent a member of a co-operative -- 15 (a) is entitled to receive notice of all meetings in the same way as the member represented; and (b) is entitled to exercise the same rights to vote as the member represented; and (c) is eligible to be elected to the board of the co-operative 20 if the member represented holds the qualifications required for holding office as a director. 178. Other rights and duties of members not affected by ineligibility to vote A provision of this Act that disentitles a member of a 25 co-operative to vote, either generally or in relation to a particular matter, does not affect any other right, entitlement, obligation or duty of the member as a member. 179. Vote of disentitled member to be disregarded Any vote cast by or on behalf of a member of a co-operative 30 when not entitled to vote must be disregarded. page 104 [Draft Bill for public comment]

Co-operatives Bill 2006 Voting and meetings Part 8 Resolutions Division 2 s. 180 Division 2 -- Resolutions 180. Decisions to be by ordinary resolution Unless this Act or the rules of the co-operative provide otherwise, every question for decision by a co-operative must be 5 decided by ordinary resolution. 181. Ordinary resolutions An ordinary resolution is a resolution of a co-operative that is passed by a simple majority at a general meeting of the co-operative or in a postal ballot of members. 10 182. Special resolutions (1) A special resolution is a resolution of a co-operative that is passed -- (a) by a two-thirds majority at a general meeting of members; or 15 (b) by a two-thirds majority in a postal ballot, other than a special postal ballot, of members; or (c) by a three-quarters majority in a special postal ballot of members. (2) A special resolution may be passed by a postal ballot only if the 20 rules of the co-operative allow, or this Act requires, the special resolution to be passed by postal ballot, including a special postal ballot. (3) A resolution is not taken to have been passed as a special resolution unless not less than 21 days notice has been given to 25 the members of the co-operative stating -- (a) the intention to propose the special resolution; and (b) the reasons for proposing the special resolution; and (c) the effect of the special resolution being passed. page 105 [Draft Bill for public comment]

Co-operatives Bill 2006 Part 8 Voting and meetings Division 2 Resolutions s. 183 183. How majority obtained is ascertained (1) A resolution is passed by a particular majority at a meeting if that majority of the members of the co-operative who, being entitled to do so, vote in person or, if proxies are allowed, by 5 proxy at the meeting vote in favour of the resolution. (2) A resolution is passed by a particular majority in a postal ballot if that majority of the members of the co-operative who, being entitled to do so, cast formal votes in the postal ballot vote in favour of the resolution. 10 184. Declaration of passing of special resolution (1) At a meeting of a co-operative for the purpose of passing a special resolution, a declaration by the chairman of the meeting that the resolution has been passed as a special resolution is evidence of that fact. 15 (2) A declaration by the returning officer for a postal ballot to pass a special resolution that the resolution has been passed as a special resolution is evidence of that fact. (3) Subsection (1) does not apply if a poll is taken at the meeting of the co-operative. 20 185. Effect of special resolution (1) Subject to subsection (2), a special resolution has effect from the date that it is passed. (2) A special resolution relating to anything for which a special resolution is required to be passed by special postal ballot has 25 no effect until it is registered under section 187(1). 186. Lodgment of special resolution (1) A co-operative must lodge 2 copies of each special resolution passed by the co-operative with the Registrar in accordance with this section for registration. page 106 [Draft Bill for public comment]

Co-operatives Bill 2006 Voting and meetings Part 8 Resolutions Division 2 s. 187 (2) The copies must -- (a) be lodged within 28 days after the passing of a special resolution or a longer period allowed by the Registrar; and 5 (b) be signed by a director and the secretary of the co-operative; and (c) be accompanied by the lodgment fee prescribed by the regulations. (3) A co-operative and an officer of the co-operative must not 10 knowingly fail to lodge the required copies under this section. Penalty: a fine of $2 000. (4) This section and section 187 do not apply to a special resolution altering the rules of a co-operative. 187. Decision of Registrar on application to register special 15 resolution (1) If the Registrar is satisfied that the co-operative has complied with this Act, and that a special resolution is not contrary to this Act, the Registrar must register the special resolution. (2) If the Registrar considers that the effect of a special resolution 20 lodged for registration would be in contravention of this Act or any other law, the Registrar -- (a) may refuse to register the special resolution; and (b) must give written notice to the co-operative that the special resolution -- 25 (i) in the case of a special resolution referred to in section 185(2), has no effect; and (ii) in any other case, has no effect as from the date that it was passed. (3) A certificate of registration of a special resolution given by the 30 Registrar is, in favour of any person advancing money to the page 107 [Draft Bill for public comment]

Co-operatives Bill 2006 Part 8 Voting and meetings Division 3 Resolution by circulated document s. 188 co-operative on the faith of the certificate or in favour of any guarantor of that advance, evidence that the resolution was properly passed. Division 3 -- Resolution by circulated document 5 188. Application of Division 3 (1) Subject to subsection (2), this Division applies to a resolution of a co-operative, including a resolution appointing an officer or auditor or approving of or agreeing to any act, matter or thing, if -- 10 (a) the co-operative has fewer than 50 members; and (b) the resolution is required or permitted under this Act or the rules of the co-operative to be passed at a general meeting of the co-operative. (2) This Division does not apply to a resolution of a co-operative -- 15 (a) of which more than 14 days notice is required to be given under this Act; or (b) that is required to be passed by a majority other than a simple majority. 189. Resolution by circulation of document -- fewer than 20 50 members (1) If all the members of a co-operative have signed a document that sets out the terms of a resolution and contains a statement that they are in favour of the resolution, the resolution is taken to have been passed at a general meeting of the co-operative. 25 (2) The meeting is taken to have been held -- (a) if all the members signed the document on the one day, on that day and at the time the document was signed by the last member to sign; or page 108 [Draft Bill for public comment]

Co-operatives Bill 2006 Voting and meetings Part 8 Postal ballots Division 4 s. 190 (b) if the members signed the document on different days, on the day, and at the time, the document was signed by the last member to sign. (3) The document need not exist as a single document, but may 5 exist in the form of 2 or more documents in identical terms. (4) The document is taken to constitute a minute of the general meeting. (5) Anything attached to the document and signed by the members signing the document is taken to have been laid before the 10 co-operative at the general meeting. (6) The document is signed by all members of a co-operative only if the document is signed by each person who was a member of the co-operative at the time the document was signed by the last member to sign. 15 (7) Nothing in this section affects or limits any rule of law about the effectiveness of the assent of a member of a co-operative given to a document, or to an act, matter or thing, otherwise than at a general meeting of the co-operative. Division 4 -- Postal ballots 20 190. Postal ballots (1) A postal ballot may be held as provided by the rules of a co-operative and must be conducted in accordance with the regulations. (2) On the declaration by the returning officer of the result of the 25 ballot, the secretary of the co-operative must make an entry in the minute book of the co-operative showing -- (a) the number of formal votes cast in favour of the proposal concerned; and (b) the number of formal votes cast against the proposal; 30 and page 109 [Draft Bill for public comment]

Co-operatives Bill 2006 Part 8 Voting and meetings Division 4 Postal ballots s. 191 (c) the number of informal votes cast. 191. Special postal ballots (1) A special postal ballot is a postal ballot that is conducted as required by this section. 5 (2) The ballot must not be held less than 21 days after notice of the ballot is given to members so as to enable sufficient time for a meeting to discuss the proposal that is the subject of the ballot to be convened and held (whether by the board or on the requisition of members). 10 (3) The co-operative must send to each member, along with any other material required to be sent in connection with the postal ballot, a disclosure statement approved by the Registrar and containing information about -- (a) the financial position of the co-operative; and 15 (b) the interests of the directors of the co-operative in the proposal with which the ballot is concerned, including any interests of the directors in another organisation concerned in the proposal; and (c) any compensation or consideration to be paid to officers 20 or members of the co-operative in connection with the proposal; and (d) any other matters as the Registrar directs. (4) If required by the Registrar, the disclosure statement is to be accompanied by a report, made by an independent person 25 approved by the Registrar, about any matters that the Registrar directs. (5) Sections 16 (except subsection (3)) and 29 apply to the approval of a disclosure statement under this section with any necessary changes and in particular as if any reference in section 16 to a 30 formation meeting were a reference to the notice of the special postal ballot. page 110 [Draft Bill for public comment]

Co-operatives Bill 2006 Voting and meetings Part 8 Postal ballots Division 4 s. 192 192. When a special postal ballot required In addition to any requirement of this Act, the rules of a co-operative must require a special postal ballot to be conducted for the purpose of passing a special resolution in relation to any 5 of the following matters relating to the co-operative -- (a) conversion of -- (i) a share capital co-operative to a non-share capital co-operative or vice versa; or (ii) a trading co-operative to a non-trading 10 co-operative or vice versa; (b) transfer of incorporation; (c) an acquisition or disposal of assets referred to in section 278; (d) the maximum permissible level of share interest in the 15 co-operative; (e) takeover; (f) merger; (g) transfer of engagements; (h) members' voluntary winding up. 20 193. Holding of postal ballot on requisition and transitional provision (1) The board of a co-operative must conduct a postal ballot, including a special postal ballot, for the passing of a special resolution on the written requisition of such number of members 25 who together are able to cast at least 20%, or any lesser percentage specified in the rules of the co-operative, of the total number of votes able to be cast at a meeting of the co-operative. (2) Subject to subsection (3), a member is not entitled to be a requisitioning member unless the member is an active member. page 111 [Draft Bill for public comment]

Co-operatives Bill 2006 Part 8 Voting and meetings Division 4 Postal ballots s. 194 (3) Subsection (2) does not apply in relation to a transferred co-operative during the 3 year period beginning on the transfer day. (4) The following provisions apply to a requisition for a postal 5 ballot -- (a) it must state -- (i) the proposed special resolution to be voted on; and (ii) the reasons for the making of the special 10 resolution; and (iii) the effect of the special resolution being passed; (b) it must be signed by the requisitioning members, and may consist of several documents in like form each signed by one or more of the requisitioning members; 15 (c) it must be served on the co-operative by being lodged at the registered office of the co-operative. (5) The postal ballot must be conducted as soon as practicable and in any case must be conducted within 2 months after the requisition is served. 20 (6) If the special resolution for which the requisitioned postal ballot is conducted is not passed, the co-operative may recover the expenses of the postal ballot from the members who requisitioned the postal ballot as a debt due to the co-operative. 194. Expenses involved in postal ballots on requisition 25 (1) All reasonable expenses incurred by a co-operative in and in connection with preparing for and holding a special postal ballot are to be considered to constitute the "expenses of the postal ballot" for the purposes of section 193(6). page 112 [Draft Bill for public comment]

Co-operatives Bill 2006 Voting and meetings Part 8 Meetings Division 5 s. 195 (2) Those expenses include (but are not limited to) the following expenses -- (a) the cost of obtaining expert advice, including legal and financial advice, and of commissioning expert reports; 5 (b) costs attributable to the use of staff of the co-operative in connection with preparing for and holding the ballot; (c) the cost of producing, printing and posting the ballot papers and other material associated with the ballot. Division 5 -- Meetings 10 195. Annual general meetings (1) In the case of a co-operative registered under Part 2 Division 4, the first annual general meeting of the co-operative must be held within 18 months after registration under this Act. (2) In the case of a co-operative registered under Part 2 Division 5, 15 the first annual general meeting of the co-operative must be held within 18 months after the last annual general meeting held by that co-operative before it was registered under this Act. (3) The second or any later annual general meeting of a co-operative must be held within -- 20 (a) 5 months after the close of the financial year of the co-operative; or (b) a further time that may be allowed by the Registrar or is prescribed by the regulations. 196. Special general meetings 25 A special general meeting of a co-operative may be called at any time by the board of the co-operative. 197. Notice of meetings The board must give each member at least 14 days notice of each general meeting. page 113 [Draft Bill for public comment]

Co-operatives Bill 2006 Part 8 Voting and meetings Division 5 Meetings s. 198 198. Quorum at meetings (1) The quorum for a meeting of a co-operative must be specified in the rules. (2) An item of business must not be transacted at a meeting of a 5 co-operative unless a quorum of members entitled to vote is present during the transaction of that item. 199. Decision at meetings (1) Unless subsection (4) requires it to be determined by a poll, a question for decision at a general meeting is to be determined by 10 a show of hands. (2) A proxy may exercise only one vote on a question determined by a show of hands. (3) A proxy may exercise more than one vote on a question determined by a poll. 15 (4) A question is to be determined by a poll if -- (a) 5 members, present in person at the meeting or represented at the meeting by a proxy, demand the poll; or (b) the chairman directs that the question will be determined 20 by poll. (5) In the case of an equality of votes, whether on a show of hands or on a poll, the chairman of the meeting at which the show of hands takes place or at which the poll is demanded may exercise a second or casting vote if the rules so provide. 25 200. Calling of general meeting on requisition and transitional provision (1) The board of a co-operative must convene a general meeting of the co-operative on the written requisition of such number of members who together are able to cast at least 20% (or any 30 lesser percentage specified in the rules of the co-operative) of page 114 [Draft Bill for public comment]

Co-operatives Bill 2006 Voting and meetings Part 8 Meetings Division 5 s. 200 the total number of votes able to be cast at a meeting of the co-operative. (2) Unless subsection (3) applies, a member is not entitled to be a requisitioning member unless the member is an active member. 5 (3) Subsection (2) does not apply in relation to a transferred co-operative during the 3 year period beginning on the transfer day. (4) The following provisions apply to a requisition for a general meeting -- 10 (a) it must state the objects of the meeting; (b) it must be signed by the requisitioning members, and may consist of several documents in like form each signed by one or more of the requisitioning members; (c) it must be served on the co-operative by being lodged at 15 the registered office of the co-operative. (5) The meeting must be called and held as soon as practicable and in any case must be held within 2 months after the requisition is served. (6) If the board does not call a meeting within 21 days after a 20 requisition is served, the following provisions apply -- (a) the requisitioning members, or any of them representing at least half their total voting rights, may call the meeting in the same way as nearly as possible as meetings are called by the board; 25 (b) for that purpose they may request the co-operative to supply a written statement setting out the names and addresses of the persons entitled when the requisition was served to receive notice of general meetings of the co-operative; 30 (c) the board must send the requested statement to the requisitioning members within 7 days after the request for the statement is made; page 115 [Draft Bill for public comment]

Co-operatives Bill 2006 Part 8 Voting and meetings Division 5 Meetings s. 201 (d) the meeting called by the requisitioning members must be held not later than 3 months after the requisition is served; (e) any reasonable expenses incurred by the requisitioning 5 members because of the board's failure to call the meeting must be paid by the co-operative; (f) any amount required to be paid by the co-operative under paragraph (e) must be retained by the co-operative out of any money due from the co-operative by way of 10 fees or other remuneration in respect of their services to such of the directors as were in default. 201. Minutes (1) Minutes of -- (a) each general meeting; and 15 (b) each meeting of the board; and (c) each meeting of a committee to which the board's functions have been delegated under section 209(1), must be entered in the appropriate records within 28 days after the meeting and confirmed at, and signed by the chairman of, 20 the next meeting. (2) The minutes of each general meeting must be available for inspection by members. (3) The rules may provide that the minutes of board meetings and committee meetings be available for inspection by members. 25 (4) Minutes must be kept in the English language. page 116 [Draft Bill for public comment]

Co-operatives Bill 2006 Management and administration of co-operatives Part 9 The Board Division 1 s. 202 Part 9 -- Management and administration of co-operatives Division 1 -- The Board 202. Board of directors 5 (1) Subject to this Act and the rules of the co-operative, the business of a co-operative is to be managed by a board of directors. (2) The board of directors may exercise all the powers of the co-operative that are not, by this Act or the rules of the 10 co-operative, required to be exercised by the co-operative in a general meeting. (3) The acts of a director are valid despite any defect that may afterwards be discovered in his or her appointment or qualification. 15 203. Election of directors (1) Except as provided in subsections (2), (3) and (4), the directors of a co-operative are to be elected in the manner specified in the rules of the co-operative. (2) The first directors of -- 20 (a) a co-operative formed under this Act are to be elected at its formation meeting; and (b) a co-operative that was a corporation incorporated under another Act are to be the directors in office at the date of registration under this Act. 25 (3) If authorised by the rules of the co-operative, a board of directors may appoint a person to fill a casual vacancy in the office of a director until the next annual general meeting. page 117 [Draft Bill for public comment]

Co-operatives Bill 2006 Part 9 Management and administration of co-operatives Division 1 The Board s. 204 (4) A resolution passed at a general meeting of a co-operative electing 2 or more directors is void unless -- (a) the meeting previously resolved that the nominations for election could be voted on together; and 5 (b) no votes were cast against that previous resolution. (5) Subsection (4) does not affect -- (a) a resolution to appoint directors by an amendment to the co-operative's rules; or (b) a ballot or poll to elect 2 or more directors if the ballot 10 or poll does not require members voting for one candidate to vote for another candidate. (6) For the purposes of subsection (5), a ballot or poll does not require a member to vote for a candidate merely because the member is required to express a preference among individual 15 candidates in order to cast a valid vote. (7) A nomination for election or appointment to the office of a director must give details of the qualifications and experience of the person nominated. (8) Unless this Act or the rules of a co-operative provides 20 otherwise, a director is eligible for re-election at the end of his or her term of office. 204. Qualification of directors (1) In this section -- "member director" means a director who is a person qualified 25 to be a director under subsection (2)(a). (2) A person is not qualified to be a director of a co-operative unless the person is -- (a) a member of the co-operative or a representative of a corporation that is a member of the co-operative; or page 118 [Draft Bill for public comment]

Co-operatives Bill 2006 Management and administration of co-operatives Part 9 The Board Division 1 s. 205 (b) an employee of the co-operative or a person qualified as provided by the rules. (3) The majority of directors must be member directors. (4) Subsection (2) does not prevent the rules of a co-operative 5 requiring that a greater number of directors than a majority must be member directors. 205. Disqualified persons (1) A person must not act as a director or directly or indirectly take part in or be concerned with the management of a co-operative 10 if the person -- (a) is the auditor of the co-operative or a partner, employee or employer of the auditor; or (b) has been convicted, whether before or after the commencement of this section, within or outside this 15 State -- (i) on indictment of an offence relating to the promotion, formation or management of a corporation; or (ii) of an offence involving fraud or dishonesty 20 punishable on conviction by imprisonment for not less than 3 months; or (iii) of an offence under the Corporations Act section 184, 344, 590, 592, 670A or 728; or (iv) of an offence under a provision of a previous law 25 of this State or of another State or Territory, with which any of the provisions referred to in subparagraph (iii) corresponds, within 5 years after the conviction or, if sentenced to imprisonment, after the person's release from prison, 30 except with the leave of the Supreme Court. Penalty: a fine of $24 000 and imprisonment for 2 years. page 119 [Draft Bill for public comment]

Co-operatives Bill 2006 Part 9 Management and administration of co-operatives Division 1 The Board s. 205 (2) A person must not act as a director or directly or indirectly take part in or be concerned with the management of a co-operative if the person -- (a) has been convicted of an offence under this Act, within 5 5 years after the conviction, except with leave of the Supreme Court; or (b) is disqualified from managing corporations under the Corporations Act Part 2D.6; or (c) is an insolvent under administration, as defined in the 10 Corporations Act section 9. Penalty: a fine of $24 000 and imprisonment for 2 years. (3) In proceedings for an offence against subsection (1), a certificate by an authority prescribed by the regulations stating that a person was released from prison on a specified date, is 15 evidence that the person was released from prison on that date. (4) A person who intends to apply for leave of the Supreme Court must give the Registrar at least 21 days notice of the person's intention. (5) The Supreme Court may grant leave subject to any condition or 20 limitation it considers appropriate. (6) A person must comply with any condition or limitation subject to which leave is granted. Penalty: a fine of $24 000 and imprisonment for 2 years. (7) On the application of the Registrar the Supreme Court may 25 revoke its leave. (8) Subject to this section, a co-operative is declared to be an applied Corporations legislation matter for the purposes of the Corporations (Ancillary Provisions) Act 2001 Part 3 in relation to the provisions of the Corporations Act Part 2D.6, subject to 30 the following modifications -- (a) a reference in the provisions to a corporation is to be read as a reference to a co-operative; page 120 [Draft Bill for public comment]

Co-operatives Bill 2006 Management and administration of co-operatives Part 9 The Board Division 1 s. 206 (b) a reference in the provisions to a company is to be read as a reference to a co-operative; (c) a reference in the provisions to ASIC is to read as a reference to the Registrar; 5 (d) any other modifications, within the meaning of the Corporations (Ancillary Provisions) Act 2001 Part 3, that are prescribed by the regulations. 206. Meeting of the board of directors (1) In this section -- 10 "member director" has the meaning given to that term in section 204(1); "independent director" means a director who is an employee of the co-operative or a person qualified as provided by the rules. 15 (2) Meetings of the board of directors must be held at least once every 3 months and may be held as often as may be necessary. (3) A meeting of the board of directors may be called by a director giving notice individually to every other director. (4) The board of directors may hold meetings, or allow directors to 20 take part in its meetings by telephone, video link, or another form of communication that allows reasonably contemporaneous and continuous communication between the directors taking part in the meeting. (5) A quorum of a meeting of the board of directors is 50% of the 25 number of directors or a greater number of directors specified in the rules of the co-operative. (6) For a quorum, the member directors must outnumber the independent directors by at least one, or, if a greater number is stated in the rules of the co-operative, the greater number. page 121 [Draft Bill for public comment]

Co-operatives Bill 2006 Part 9 Management and administration of co-operatives Division 1 The Board s. 207 (7) The chairman of the board may be elected either by the board or at a general meeting of the co-operative, and is to be elected, hold office, and retire, and may be removed from office, as provided by the rules of the co-operative. 5 207. Transaction of business outside meetings (1) The board of a co-operative may, if it considers appropriate, transact any of its business by the circulation of papers among all of the directors of the board. (2) A resolution in writing approved in writing by a majority of the 10 directors of the board is taken to be a decision of the board. (3) Separate copies of a resolution of the board may be signed by the directors if the wording of the resolution and approval is identical in each copy. (4) For the purpose of approving a resolution under this section, the 15 chairman of the board and each director have the same voting rights as they have at an ordinary meeting of the board. (5) The resolution is approved when the last director required for the majority signs. (6) A resolution of a board must be recorded in the minutes of the 20 meetings of the board within 28 days after the resolution is approved. (7) Papers may be circulated among directors of the board for the purposes of this section by facsimile or other transmission of the information in the papers concerned. 25 208. Deputy directors The rules of a co-operative may provide for a deputy director to be appointed to act in the place of a director who is absent from a meeting of the board. page 122 [Draft Bill for public comment]

Co-operatives Bill 2006 Management and administration of co-operatives Part 9 The Board Division 1 s. 209 209. Delegation by board (1) If authorised by the rules of a co-operative, the board of the co-operative may, by resolution, delegate the board's powers, other than this power of delegation, specified in the resolution 5 to -- (a) a director; or (b) a committee of 2 or more directors; or (c) a committee of members of the co-operative; or (d) a committee of members of the co-operative and other 10 persons if members form the majority of persons on the committee. (2) The co-operative or the board may, by resolution, revoke wholly or in part a delegation under this section. (3) A function, the exercise of which has been delegated under this 15 section, may be exercised from time to time in accordance with the terms of the delegation while the delegation remains unrevoked. (4) A delegation under this section may be made subject to conditions or limitations as to the exercise of any of the 20 functions delegated, or as to time or circumstance. (5) Despite any delegation under this section, the board may continue to exercise all or any of the functions delegated. 210. Removal from and vacation of office (1) The directors hold office and must retire, and may be removed 25 from office, as provided by the rules of the co-operative. (2) A director vacates office in the circumstances, if any, provided in the rules of the co-operative and in any of the following cases -- (a) if the director is disqualified from being a director as 30 provided by section 205; page 123 [Draft Bill for public comment]

Co-operatives Bill 2006 Part 9 Management and administration of co-operatives Division 2 Secretary s. 211 (b) if the director absents himself or herself from 3 consecutive ordinary meetings of the board without its leave; (c) if the director resigns the office of director by written 5 notice given by the director to the co-operative; (d) if the director is removed from office by special resolution of the co-operative; (e) if the person ceases to hold the qualification by reason of which the person was qualified to be a director; 10 (f) if an administrator of the co-operative's affairs is appointed under Part 12 Division 5. Division 2 -- Secretary 211. Secretary (1) A co-operative must have a secretary. 15 (2) The board of the co-operative is to appoint the secretary. (3) The board may appoint a person to act as the secretary during the absence or incapacity of the secretary. (4) A person is not qualified to be appointed as, or to act as, the secretary unless the person is an adult who ordinarily lives in 20 Australia. Division 3 -- Duties and liabilities of directors, officers and employees 212. Meaning of "officer" In this Division -- 25 "officer" of a co-operative means -- (a) a director or secretary of the co-operative; or page 124 [Draft Bill for public comment]

Co-operatives Bill 2006 Management and administration of co-operatives Part 9 Duties and liabilities of directors, officers and employees Division 3 s. 213 (b) a person who is concerned, or takes part, in the management of the co-operative, whether or not as a director; or (c) a receiver, or receiver and manager, of property of 5 the co-operative, or another authorised person who enters into possession or assumes control of property of the co-operative for the purpose of enforcing a charge; or (d) an administrator of a deed of arrangement executed 10 by the co-operative; or (e) a liquidator or provisional liquidator appointed in a voluntary winding up of the co-operative; or (f) an administrator of the co-operative appointed under the Corporations Act Part 5.3A as applying under 15 this Act; or (g) a trustee or other person administering a compromise or arrangement made between the co-operative and another person or other persons. 213. Officers must act honestly 20 An officer of a co-operative must at all times act honestly in the exercise of his or her powers and the discharge of the duties of his or her office, both in the State and elsewhere. Penalty: (a) for a contravention committed with intent to deceive 25 or defraud the co-operative, members or creditors of the co-operative or creditors of another person or for another fraudulent purpose, a fine of $24 000 and imprisonment for 2 years; or (b) in another case, a fine of $6 000. page 125 [Draft Bill for public comment]

Co-operatives Bill 2006 Part 9 Management and administration of co-operatives Division 3 Duties and liabilities of directors, officers and employees s. 214 214. Standard of care and diligence required (1) In the exercise of his or her powers and the discharge of his or her functions, an officer of a co-operative must exercise the degree of care and diligence that a reasonable person in a like 5 position in a co-operative would exercise in the co-operative's circumstances. Penalty: a fine of $2 000. (2) An officer is not liable to be convicted for a contravention of this section if the co-operative has resolved by ordinary 10 resolution to forgive the contravention. 215. Improper use of information or position (1) An officer or employee or former officer or employee of a co-operative or a member of a committee referred to in section 209(1) must not make improper use of information 15 acquired by reason of his or her position as an officer or employee or member to gain, directly or indirectly, an advantage for himself or herself or for any other person or to cause detriment to the co-operative. (2) An officer or employee of a co-operative or a member of a 20 committee referred to in section 209(1) must not make improper use of his or her position as an officer or employee or member, to gain, directly or indirectly, an advantage for himself or herself or for any other person or to cause detriment to the co-operative. 25 Penalty: (a) for a contravention committed with intent to deceive or defraud the co-operative, members or creditors of the co-operative or creditors of another person or for another fraudulent purpose, a fine of $24 000 and 30 imprisonment for 2 years; or (b) in any other case, a penalty not exceeding a fine of $6 000. page 126 [Draft Bill for public comment]

Co-operatives Bill 2006 Management and administration of co-operatives Part 9 Duties and liabilities of directors, officers and employees Division 3 s. 216 216. Recovery of damages by co-operative (1) If a person contravenes a provision of this Division in relation to a co-operative, the co-operative may, whether or not the person has been convicted of an offence for that contravention, recover 5 an amount from the person as a debt payable to the co-operative. (2) The amount that the co-operative is entitled to recover from the person is -- (a) if the person or another person made a profit as a result 10 of the contravention, an amount equal to that profit; and (b) if the co-operative has suffered loss or damage as a result of the contravention, an amount equal to that loss or damage. 217. Other duties and liabilities not affected 15 This Division has effect in addition to, and does not limit, a law relating to the duty or liability of a person because of the person's office or employment in relation to a co-operative and does not prevent the institution of any civil proceeding for a breach of a duty or for a liability of that type. 20 218. Application of Corporations Act concerning indemnities and insurance for officers and auditors A co-operative is declared to be an applied Corporations legislation matter for the purposes of the Corporations (Ancillary Provisions) Act 2001 Part 3 in relation to the 25 Corporations Act sections 199A, (except 199A(2)(b)), 199B and 199C, subject to the following modifications -- (a) a reference in the sections to a company is to be read as a reference to a co-operative; (b) a reference in the sections to ASIC is to be read as a 30 reference to the Registrar; page 127 [Draft Bill for public comment]

Co-operatives Bill 2006 Part 9 Management and administration of co-operatives Division 4 Restrictions on directors and officers s. 219 (c) a reference to section 182 is to be read as a reference to sections 213 and 214 of this Act; (d) a reference to section 183 is to be read as a reference to section 215 of this Act; 5 (e) any other modifications, within the meaning of the Corporations (Ancillary Provisions) Act 2001 Part 3, that are prescribed by the regulations. 219. Application of Corporations Act provisions concerning officers of co-operatives 10 A co-operative is declared to be an applied Corporations legislation matter for the purposes of the Corporations (Ancillary Provisions) Act 2001 Part 3 in relation to the Corporations Act sections 344, 589 to 598 and 1307, subject to the following modifications -- 15 (a) in section 344, "a company, registered scheme or disclosing entity" is to be read as "a co-operative"; (b) a reference in the sections, other than section 344, to a company is to be read as a reference to a co-operative; (c) a reference in the sections to ASIC is to be read as a 20 reference to the Registrar; (d) any other modifications, within the meaning of the Corporations (Ancillary Provisions) Act 2001 Part 3, that are prescribed by the regulations. Division 4 -- Restrictions on directors and officers 25 220. Directors' remuneration A director of a co-operative must not receive remuneration for services as a director other than fees, concessions and other benefits that are approved at a general meeting of the co-operative. 30 Penalty: a fine of $24 000 or imprisonment for 2 years. page 128 [Draft Bill for public comment]

Co-operatives Bill 2006 Management and administration of co-operatives Part 9 Restrictions on directors and officers Division 4 s. 221 221. Certain financial accommodation to officers prohibited (1) An officer of a co-operative who is not a director of the co-operative must not obtain financial accommodation from the co-operative other than -- 5 (a) with the approval of a majority of the directors; or (b) under a scheme about providing financial accommodation to officers that has been approved by a majority of the directors. Penalty: a fine of $24 000 or imprisonment for 2 years. 10 (2) For the purposes of this section, financial accommodation is taken to be obtained by an officer of a co-operative if it is obtained by -- (a) a proprietary company in which the officer is a shareholder or director; or 15 (b) a trust of which the officer is a trustee or beneficiary; or (c) a trust of which a corporation is trustee if the officer is a director or other officer of the corporation. (3) A co-operative must not give financial accommodation to an officer of the co-operative if -- 20 (a) by giving the financial accommodation, the officer would contravene this section; and (b) the co-operative knows or should reasonably know of the contravention. Penalty: a fine of $50 000. 25 222. Financial accommodation to directors and associates (1) In this section -- "associate" of a director means -- (a) the director's spouse; or page 129 [Draft Bill for public comment]

Co-operatives Bill 2006 Part 9 Management and administration of co-operatives Division 4 Restrictions on directors and officers s. 222 (b) a person when acting in the capacity of trustee of a trust under which -- (i) the director or director's spouse has a beneficial interest; or 5 (ii) a corporation mentioned in paragraph (c) has a beneficial interest; or (c) a corporation if -- (i) the director or director's spouse has a material 10 interest in shares in the corporation; and (ii) the nominal value of the shares is not less than 10% of the nominal value of the issued share capital of the corporation. (2) For the purposes of this section, a person has a "material 15 interest" in a share in a corporation if -- (a) the person has power to withdraw the share capital subscribed for the share or to exercise control over the withdrawal of the share capital; or (b) the person has power to dispose of or to exercise control 20 over the disposal of the share; or (c) the person has power to exercise or to control the exercise of any right to vote conferred on the holder of the share. (3) A co-operative must not provide financial accommodation to a 25 director, or to a person the co-operative knows or should reasonably know is an associate of a director, unless -- (a) the accommodation is -- (i) approved under subsection (4); or (ii) given under a scheme approved under 30 subsection (4); or (iii) provided on terms no more favourable to the director or associate than the terms on which it is page 130 [Draft Bill for public comment]

Co-operatives Bill 2006 Management and administration of co-operatives Part 9 Restrictions on directors and officers Division 4 s. 222 reasonable to expect the co-operative would give if dealing with the director or associate at arm's length in the same circumstances; and 5 (b) the directors have approved the accommodation, at a meeting of the board at which a quorum was present, by a majority of at least two-thirds of the directors present and voting on the matter. Penalty: a fine of $50 000. 10 (4) For the purposes of subsection (3)(a)(i) and (ii), financial accommodation or a scheme is approved if -- (a) it is approved by a resolution passed at a general meeting; and (b) the full details of the accommodation or scheme were 15 made available to members at least 21 days before the meeting. (5) A director or an associate of a director must not obtain financial accommodation given in contravention of subsection (3). Penalty: a fine of $24 000 or imprisonment for 2 years. 20 (6) For the purposes of this section, a concessional rate of interest for a borrower from a co-operative is a normal term only if the borrower is entitled to the concession by being a member of a class of borrowers from the co-operative specified in its rules as being entitled to the concession. 25 (7) If a director of a co-operative or an associate of a director accepts in payment of a debt owed by a member of the co-operative to the director or associate, any proceeds of financial accommodation provided to the member by the co-operative, this section has effect as if the financial 30 accommodation has been provided to the director or associate. page 131 [Draft Bill for public comment]

Co-operatives Bill 2006 Part 9 Management and administration of co-operatives Division 4 Restrictions on directors and officers s. 223 (8) In this section, a reference to -- (a) the provision of financial accommodation to a director or an associate of a director; or (b) the obtaining of financial accommodation by a director 5 or an associate of a director; or (c) a debt owed to a director or an associate of a director, includes a reference to a provision of financial accommodation to, or an obtaining of financial accommodation by, the director or associate, or a debt owed to the director or associate, jointly 10 with another person. 223. Restriction on directors of certain co-operatives selling land to co-operative A director of a co-operative the primary activity of which is or includes the acquisition of land in order to settle or retain people 15 on the land, must not sell land to the co-operative except under a special resolution of the co-operative. Penalty: a fine of $24 000 or imprisonment for 2 years. 224. Management contracts (1) In this section -- 20 "management contract" means a contract or other arrangement under which -- (a) a person who is not an officer of the co-operative agrees to perform the whole, or a substantial part, of the functions of the co-operative, whether under the 25 control of the co-operative or not; or (b) a co-operative agrees to perform the whole or a substantial part of its functions -- (i) in a particular way; or (ii) in accordance with the directions of any 30 person; or page 132 [Draft Bill for public comment]

Co-operatives Bill 2006 Management and administration of co-operatives Part 9 Declaration of interests Division 5 s. 225 (iii) subject to specified restrictions or conditions. (2) A co-operative must not enter into a management contract unless that contract has first been approved by special resolution. 5 (3) A management contract entered into in contravention of subsection (2) is void. Division 5 -- Declaration of interests 225. Declaration of interest (1) A director of a co-operative who is or becomes in any way 10 (whether directly or indirectly) interested in a contract, or proposed contract with the co-operative must declare the nature and extent of the interest to the board of directors under this section. Penalty: a fine of $24 000 and imprisonment for 2 years. 15 (2) In the case of a proposed contract, the declaration must be made -- (a) at the meeting of the board at which the question of entering into the contract is first considered; or (b) if the director was not at that time interested in the 20 proposed contract, at the next meeting of the board held after the director becomes interested in the proposed contract. (3) If a director becomes interested in a contract with the co-operative after it is made, the declaration must be made 25 at the next meeting of the board held after the director becomes interested in the contract. (4) For the purposes of this section, a general written notice given to the board by a director to the effect that the director -- (a) is a member of a specified entity; and page 133 [Draft Bill for public comment]

Co-operatives Bill 2006 Part 9 Management and administration of co-operatives Division 5 Declaration of interests s. 225 (b) is to be regarded as interested in any contract that may, after the giving of the notice, be made with the entity, is a sufficient declaration. (5) A director of a co-operative who holds an office or has an 5 interest in property whereby, whether directly or indirectly, duties or interests might be created that could conflict with the director's duties or interests as director must, under subsection (6), declare at a meeting of the board of directors the fact and the nature, character and extent of the conflict. 10 Penalty: a fine of $24 000 and imprisonment for 2 years. (6) A declaration required by subsection (5) in relation to holding an office or having an interest must be made by a person -- (a) if the person holds the office or has the interest when he or she becomes a director, at the first meeting of the 15 board held after -- (i) the person becomes a director; or (ii) the relevant facts as to holding the office or having the interest come to the person's knowledge, 20 whichever is the later; or (b) if the person starts to hold the office or acquires the interest after the person becomes a director, at the first meeting of the board held after the relevant facts as to holding the office or having the interest come to the 25 person's knowledge. (7) If a director has made a declaration under this section, then unless the board determines otherwise, the director must not -- (a) be present during any deliberation of the board in relation to the matter; or 30 (b) take part in any decision of the board in relation to the matter. page 134 [Draft Bill for public comment]

Co-operatives Bill 2006 Management and administration of co-operatives Part 9 Declaration of interests Division 5 s. 226 (8) For the purposes of the making of a determination of the board under subsection (7) in relation to a director who has made a declaration under this section, the director must not -- (a) be present during any deliberation of the board for the 5 purpose of making the determination; or (b) take part in the making by the board of the determination. 226. Declarations to be recorded in minutes Every declaration under this Division is to be recorded in the 10 minutes of the meeting at which it was made. 227. Division does not affect other laws or rules Except as provided in section 228, this Division is in addition to, and does not limit, the operation of a law or a provision in the rules of the co-operative restricting a director from having 15 an interest in contracts with the co-operative or from holding offices or possessing properties involving duties or interests in conflict with his or her duties or interests as director. 228. Certain interests need not be declared The interest in a contract or proposed contract that a director is 20 required by this Division to declare does not include an interest in -- (a) a contract or proposed contract for a purchase of goods and services by the director from the co-operative; or (b) a lease of land to the director by the co-operative; or 25 (c) a contract or proposed contract for the sale of agricultural products or livestock by the director to the co-operative; or (d) a contract or proposed contract that, under the rules of the co-operative, may be made between the co-operative 30 and a member; or page 135 [Draft Bill for public comment]

Co-operatives Bill 2006 Part 9 Management and administration of co-operatives Division 6 Financial reports and audit s. 229 (e) a contract or proposed contract of a class of contracts prescribed by the regulations, but only if the contract is made in good faith, in the ordinary course of the business of the co-operative, and on the terms that 5 are usual and proper in similar dealings between the co-operative and its members. Division 6 -- Financial reports and audit 229. Meaning of "control" and "entity" In this Division -- 10 "control" has the same meaning in relation to a co-operative that it has under the Corporations Act in relation to a corporation; "entity" has the same meaning in relation to a co-operative that it has under the Corporations Act in relation to a 15 corporation. 230. Requirements for financial records and financial reports (1) A co-operative is declared to be an applied Corporations legislation matter for the purposes of the Corporations (Ancillary Provisions) Act 2001 Part 3 in relation to the 20 provisions of the Corporations Act Part 2F.3, sections 249K and 249V and Chapter 2M, subject to the following modifications -- (a) a reference in the provisions to a company or to a public company is to be read as a reference to a co-operative; 25 (b) a reference in the provisions to the Court is to be read as a reference to the Supreme Court; (c) a reference in the provisions to "prescribed" is to be read as a reference to "approved by the Registrar"; (d) a reference in the provisions to ASIC is to be read as a 30 reference to the Registrar; page 136 [Draft Bill for public comment]

Co-operatives Bill 2006 Management and administration of co-operatives Part 9 Financial reports and audit Division 6 s. 230 (e) an offence created in relation to the provisions is the offence set out in subsection (2); (f) any penalty for the offence referred to in paragraph (e) is the penalty set out in subsection (2); 5 (g) a reference in sections 247A and 300(14) and (15) to the Corporations Act section 237 is to be read as a reference to section 92 of this Act; (h) a reference in section 300(8) to the Corporations Act section 199A(2) or (3) is to be read as a reference to 10 section 218 of this Act; (i) the provisions apply as if sections 247D, 291, 292(2), 293, 294, 296(1) (second sentence), 298(3), 300(12) and (13), 301(2), 315(2) to (4), 323D(1) and (2), 323DA, 325 and 327(1A) and Part 2M.1, Part 2M.4 Division 2, 15 Part 2M.5 and Part 2M.6 of the Corporations Act were omitted; (j) any other modifications, within the meaning of the Corporations (Ancillary Provisions) Act 2001 Part 3, that are prescribed by the regulations. 20 (2) A co-operative must -- (a) keep financial records and prepare financial reports as required under this Act; and (b) ensure that the financial reports are audited in accordance with this Act. 25 Penalty: a fine of $2 000. (3) Without limiting the matters for which regulations under this section may make provision, the regulations may make provision for or in relation to the following -- (a) requiring the submission of financial reports to the 30 Australian Accounting Standards Board; page 137 [Draft Bill for public comment]

Co-operatives Bill 2006 Part 9 Management and administration of co-operatives Division 6 Financial reports and audit s. 231 (b) requiring the adoption by a co-operative of the same financial year for each entity that the co-operative controls. 231. Power of Registrar to grant exemptions 5 The Registrar may, by order published in the Gazette, exempt -- (a) a co-operative; or (b) a person or firm proposed to be appointed as an auditor of a co-operative; or 10 (c) a director or auditor of a co-operative, from compliance with a provision of a regulation made for the purpose of this Part or with a provision of the Corporations Act as that Act applies under section 230. 232. Disclosure by directors 15 The directors of a co-operative must make the disclosures about the affairs of the co-operative and of any entity that the co-operative controls that are required by the regulations. Penalty: a fine of $2 000. 233. Protection of auditors etc. 20 (1) An auditor of a co-operative has qualified privilege in relation to -- (a) a statement that the auditor makes, orally or in writing, in the course of his or her duties as auditor; or (b) the giving of notice, or the sending of copies of financial 25 reports or other reports, to the Registrar under this Act. (2) A person has qualified privilege in relation to -- (a) the publishing of a document prepared by an auditor in the course of the auditor's duties and required by or page 138 [Draft Bill for public comment]

Co-operatives Bill 2006 Management and administration of co-operatives Part 9 Registers, records and returns Division 7 s. 234 under this Act to be lodged with the Registrar, whether or not the document has been lodged; or (b) the publishing of a statement made by an auditor referred to in subsection (1). 5 (3) This section does not limit or affect a right, privilege or immunity that an auditor or other person has, apart from this section, as defendant in proceedings for defamation. 234. Financial year (1) The financial year of a co-operative is to end on the day in each 10 year that is provided for by the rules of the co-operative. (2) In the case of a co-operative registered under Part 2 Division 4, the first financial year of the co-operative may extend from the date of its registration to a date not more than 18 months after registration. 15 (3) In the case of a co-operative registered under Part 2 Division 5, the first financial year of the co-operative is to be a period not extending beyond a date that is 18 months after the end of the co-operative's last financial year before the co-operative registered under this Act. 20 (4) On an alteration of the rules of a co-operative altering its financial year, the alteration may provide either that the financial year current at the date of alteration is to be extended for a period not exceeding 6 months or that the financial year next following the financial year that is so current is to be a 25 period exceeding 12 months but not exceeding 18 months. Division 7 -- Registers, records and returns 235. Registers to be kept by co-operatives (1) A co-operative must keep the following registers in accordance with this section -- 30 (a) a register of members, directors and shares, if any; page 139 [Draft Bill for public comment]

Co-operatives Bill 2006 Part 9 Management and administration of co-operatives Division 7 Registers, records and returns s. 236 (b) a register of loans to, securities given by, debentures and co-operative capital units issued by and deposits received by the co-operative; (c) a register of names of persons who have given loans or 5 deposits to, or who hold securities given by, or who hold debentures or co-operative capital units issued by the co-operative; (d) a register of loans made by or guaranteed by the co-operative, and of any securities taken by the 10 co-operative; (e) a register of holders of co-operative capital units, in accordance with section 262(4); (f) a co-operative register of charges, in accordance with Schedule 3 clause 41; 15 (g) a register of memberships cancelled under Part 6, in accordance with section 133; (h) a register of notifiable interests, in accordance with section 289; (i) a register of undertakings, in accordance with 20 section 477(1); (j) other registers prescribed by the regulations. Penalty: a fine of $2 000. (2) The registers must be kept in the way, and contain the particulars, specified by this Act or prescribed by the 25 regulations. 236. Location of registers (1) A register kept under this Division must be kept at -- (a) the co-operative's registered office; or (b) an office at the co-operative's principal place of 30 business; or page 140 [Draft Bill for public comment]

Co-operatives Bill 2006 Management and administration of co-operatives Part 9 Registers, records and returns Division 7 s. 237 (c) an office, whether of the co-operative or of someone else, where the work involved in maintaining the register is done; or (d) another office approved by the Registrar. 5 (2) The office must be in this State. (3) The co-operative must lodge with the Registrar a notice of the address at which the register is kept within 28 days after the register is -- (a) established at an office that is not the co-operative's 10 registered office; or (b) moved from one office to another. 237. Inspection of registers etc. (1) A co-operative must have at the office where the registers are kept and available during all reasonable hours for inspection by 15 a member free of charge the following -- (a) a copy of this Act and the regulations; (b) a copy of the rules of the co-operative and any order under section 350; (c) a copy of the minutes of each general meeting of the 20 co-operative; (d) a copy of the last annual report of the co-operative under section 240; (e) the register of directors, members and shares; (f) the register of names of persons who have given loans or 25 deposits to or hold securities, debentures or co-operative capital units given or issued by the co-operative; (g) other registers prescribed by the regulations. (2) If a register is not kept on a computer, the person inspects the register itself. page 141 [Draft Bill for public comment]

Co-operatives Bill 2006 Part 9 Management and administration of co-operatives Division 7 Registers, records and returns s. 238 (3) If the register is kept on a computer, the person inspects a hard copy of the information on the register unless the person and the co-operative agree that the person can access the information by computer. 5 (4) A member is entitled to make a copy of entries in a register specified in subsection (1) and to do so free of charge unless the rules of the co-operative require a fee to be paid, in which case on payment of the required fee. (5) The fee required by the rules must not be more than the fee 10 prescribed for a copy of any entry in the register. (6) A co-operative must -- (a) permit a member to inspect a document or make a copy of a document that the member is entitled to inspect or make under this section; and 15 (b) give the member all reasonable assistance to inspect the document or make the copy. Penalty: a fine of $2 000. (7) A co-operative must have at the place where the registers are kept and available during all reasonable hours for inspection by 20 any person such documents in relation to the co-operative as are prescribed. Penalty: a fine of $2 000. 238. Use of information on registers (1) A person must not -- 25 (a) use information about a person obtained from a register kept under this Division to contact or send material to the person; or page 142 [Draft Bill for public comment]

Co-operatives Bill 2006 Management and administration of co-operatives Part 9 Registers, records and returns Division 7 s. 239 (b) disclose information of that kind knowing that the information is likely to be used to contact or send material to the person, unless that use or disclosure of the information is -- 5 (c) relevant to the holding of the directorship, membership, shares, loans, securities, debentures, co-operative capital units or deposits concerned or the exercise of the rights attaching to them; or (d) approved by the board; or 10 (e) necessary to comply with a requirement of this Act. (2) A person who contravenes subsection (1) is liable to compensate anyone else who suffers loss or damage because of the contravention. (3) A person who makes a profit from a contravention of 15 subsection (1) owes a debt to the co-operative. (4) The amount of the debt is the amount of the profit. 239. Notice of appointment etc. of directors and officers (1) A co-operative must give notice to the Registrar in accordance with this section of the appointment of a person as a director, 20 principal executive officer or secretary of the co-operative or a subsidiary of the co-operative, and of the cessation of the appointment. (2) The notice must -- (a) be in the form approved by the Registrar; and 25 (b) be given within 28 days after the appointment or cessation of appointment; and (c) state the particulars, prescribed by the regulations, of the appointment or cessation of appointment. Penalty: a fine of $2 000. page 143 [Draft Bill for public comment]

Co-operatives Bill 2006 Part 9 Management and administration of co-operatives Division 7 Registers, records and returns s. 240 240. Annual report to be lodged with Registrar (1) For the purposes of subsection (2) the required period is -- (a) 28 days after the annual general meeting of the co-operative; or 5 (b) if the annual general meeting of the co-operative is not held within the period stated in section 195(3)(a), 28 days after the end of that period. (2) A co-operative must lodge with the Registrar, within the required period in each year, an annual report containing the 10 following -- (a) a notice in the form approved by the Registrar listing the secretary, the directors and the principal executive officers of the co-operative and of each subsidiary of the co-operative, as at the date that the annual report is 15 lodged with the Registrar; (b) if the co-operative is required under section 230 to prepare a financial report for its most recently ended financial year, a copy of the financial report; (c) a copy of the financial statements of each subsidiary of 20 the co-operative in relation to the most recently ended financial year of the subsidiary, or a copy of the consolidated financial statements for all subsidiaries of the co-operative in relation to the most recently ended financial year of the subsidiaries; 25 (d) a copy of any report by the auditors or directors of the co-operative or subsidiary -- (i) prepared under section 230(2); or (ii) on a financial report referred to in paragraph (b) or a financial statement referred to in 30 paragraph (c); (e) other particulars prescribed by the regulations. Penalty: a fine of $2 000. page 144 [Draft Bill for public comment]

Co-operatives Bill 2006 Management and administration of co-operatives Part 9 Name and registered office Division 8 s. 241 241. List of members to be provided at request of Registrar A co-operative must, at the written request of the Registrar, send to the Registrar, within the time and in the way that the Registrar specifies, a full list of the members of the co-operative 5 and of each subsidiary of the co-operative, together with the particulars with regard to those members that the Registrar specifies in the request. Penalty: a fine of $2 000. 242. Special return to be given at request of Registrar 10 (1) The Registrar may, by direction in writing, require a co-operative to give to the Registrar a special return in the form, within the time, and relating to the subject matter, specified by the Registrar. (2) The co-operative must comply with a direction under 15 subsection (1). Penalty: a fine of $2 000. Division 8 -- Name and registered office 243. Name to include certain matter (1) The name of a co-operative may consist of words, numbers or a 20 combination of both. (2) The name of a co-operative must include the word "Co-operative" or "Cooperative" or the abbreviation "Co-op". (3) The word "Limited" or the abbreviation "Ltd" must be the last word of the name. 25 (4) A corporation that is formed or incorporated under an Act other than this Act must not register under the other Act by a name that includes the word "Co-operative" or "Cooperative" or the abbreviation "Co-op". Penalty: a fine of $2 000. page 145 [Draft Bill for public comment]

Co-operatives Bill 2006 Part 9 Management and administration of co-operatives Division 8 Name and registered office s. 244 (5) The Registrar must not register as the name of a co-operative a name that contains anything a regulation declares is an unsuitable name, unless the Minister is satisfied the name is suitable for registration in the circumstances of a particular case. 5 (6) Subsection (4) does not apply to a corporation that is allowed under another Act to use the word "Co-operative" or "Cooperative" or the abbreviation "Co-op" in its name. 244. Use of abbreviations A description of a co-operative is not inadequate or incorrect 10 merely because of one or more of the following -- (a) the use of the abbreviation "Co-op" instead of the word "Co-operative" or "Cooperative" in the co-operative's name; (b) the use of the abbreviation "Ltd" instead of the word 15 "Limited" in the co-operative's name; (c) the use of the symbol "&" instead of the word "and" in the co-operative's name; (d) the use of any of those words instead of the corresponding abbreviation or symbol in the 20 co-operative's name; (e) the use of any abbreviation or elaboration of the name of the co-operative that is approved in a particular case or for a particular purpose by the Registrar in writing. 245. Name to appear on business documents etc. 25 (1) A co-operative must ensure its name appears in legible characters on its seal, and in any of the following documents issued, signed or endorsed by or on behalf of the co-operative -- (a) a bill of exchange, promissory note, cheque or other 30 negotiable instrument; (b) a receipt or letter of credit issued by the co-operative; page 146 [Draft Bill for public comment]

Co-operatives Bill 2006 Management and administration of co-operatives Part 9 Name and registered office Division 8 s. 246 (c) a document of a class prescribed by the regulations. Penalty: a fine of $2 000. (2) An officer of a co-operative or a person on its behalf must not -- 5 (a) use a seal of the co-operative; or (b) sign or authorise to be signed on behalf of the co-operative any document referred to in subsection (1), in or on which the co-operative's name does not appear in legible characters. 10 Penalty: a fine of $2 000. (3) A director of a co-operative who knowingly authorises or permits a contravention of this section is guilty of an offence. Penalty: a fine of $2 000. 246. Change of name of co-operative 15 (1) A co-operative may by special resolution change its name to a name approved by the Registrar. (2) A change of name must be advertised as prescribed by the regulations. (3) A change of name does not take effect until -- 20 (a) the Registrar has noted the change on the certificate of registration of the co-operative; or (b) the certificate of registration is surrendered to the Registrar and a replacement certificate of registration is issued in the new name. 25 (4) A change of name by a co-operative does not affect -- (a) the identity of the co-operative; or (b) the exercise of a right, or the enforcement of an obligation, by or against the co-operative or a person; or page 147 [Draft Bill for public comment]

Co-operatives Bill 2006 Part 9 Management and administration of co-operatives Division 8 Name and registered office s. 247 (c) the continuation of legal proceedings by or against the co-operative. (5) Legal proceedings that might have been continued or started by or against the co-operative in its former name may be continued 5 or started by or against the co-operative in its new name. (6) The Registrar may refuse to approve a change of name if the Registrar thinks the new name is unsuitable. (7) The Registrar may direct a co-operative to change its name if the Registrar considers the name is likely to be confused with 10 the name of a corporation or a registered business name. 247. Restriction on use of word "co-operative" or similar words (1) A person other than a co-operative must not trade, or carry on business, under a name or title containing the word "Co-operative" or "Cooperative" or the abbreviation "Co-op" or 15 words importing a similar meaning. Penalty: a fine of $2 000. (2) Subsection (1) does not apply to a corporation referred to in section 243(6). 248. Registered office of co-operative 20 (1) A co-operative must have a registered office. Penalty: a fine of $2 000. (2) A co-operative must, at the premises of its registered office, publicly and conspicuously display a notice stating the name of the co-operative and identifying the premises as its registered 25 office. Penalty: a fine of $2 000. (3) Within 28 days after changing the address of its registered office, a co-operative must give the Registrar written notice of the new address. 30 Penalty: a fine of $2 000. page 148 [Draft Bill for public comment]

Co-operatives Bill 2006 Funds and property Part 10 Power to raise money Division 1 s. 249 Part 10 -- Funds and property Division 1 -- Power to raise money 249. Meaning of obtaining financial accommodation A reference in this Division to the obtaining of financial 5 accommodation includes a reference to the obtaining of credit and the borrowing or raising of money by any means. 250. Fund raising to be in accordance with Act and regulations The regulations may impose requirements and restrictions on the obtaining of financial accommodation, and the giving of 10 security in order to obtain financial accommodation, by a co-operative. 251. Limits on deposit taking A co-operative must not accept money on deposit unless -- (a) the co-operative is authorised by its rules to accept 15 money on deposit and was authorised by its rules immediately before the commencement of this section to accept money on deposit; or (b) the co-operative was a deposit-taking corporation immediately before it became a co-operative and it is 20 authorised by its rules to accept money on deposit; or (c) in the case of a merged co-operative, one or more of the co-operatives involved in the merger was a deposit-taking co-operative immediately before the registration of the merged co-operative and the merged 25 co-operative is authorised by its rules to accept money on deposit. 252. Members etc. not required to see to application of money A member or other person from whom a co-operative obtains financial accommodation is not required to see to its application page 149 [Draft Bill for public comment]

Co-operatives Bill 2006 Part 10 Funds and property Division 1 Power to raise money s. 253 and is not affected or prejudiced by the fact that in obtaining that financial accommodation, the co-operative contravened a provision of this Act or the rules of the co-operative. 253. Registrar's directions about fundraising 5 (1) The Registrar may, if the Registrar considers it is in the interests of a co-operative's members, by written notice served on a co-operative, give a direction to the co-operative as to the way in which it is to exercise its functions in connection with the activities of the co-operative in obtaining financial 10 accommodation. (2) A direction under subsection (1) may make provision for any one or more of the following matters -- (a) requiring the co-operative to stop obtaining financial accommodation or to stop obtaining financial 15 accommodation in a particular way; (b) requiring the co-operative to repay in accordance with the direction all or part of financial accommodation obtained; (c) requiring the co-operative to re-finance in a specified 20 way financial accommodation repaid in accordance with the Registrar's direction; (d) the way in which the co-operative is permitted to invest or use the proceeds of financial accommodation it obtains. 25 (3) Within 28 days of receiving a direction, a co-operative may apply to the Supreme Court for a review of that decision. 254. Subordinated debt (1) In this section -- "subordinated debt" means debt incurred under an agreement 30 under which, in the event of the winding up of the page 150 [Draft Bill for public comment]

Co-operatives Bill 2006 Funds and property Part 10 Power to raise money Division 1 s. 255 co-operative, a claim of the creditor against the co-operative in relation to the debt is to rank in priority -- (a) equally with the claim of another creditor who is a party to a similar agreement; and 5 (b) except as provided by paragraph (a), after the claims of another creditor of the co-operative and before the claims of members to repayment of share capital in the co-operative. (2) A co-operative may incur subordinated debt. 10 (3) An agreement under which subordinated debt is incurred has effect despite the provisions of the Corporations Act Part 5.6 Division 6, as applied under Part 12 Division 3 of this Act. 255. Application of Corporations Act to issues of debentures (1) Subject to subsection (2), the debentures of a co-operative are 15 declared to be applied Corporations legislation matters for the purposes of the Corporations (Ancillary Provisions) Act 2001 Part 3 in relation to the provisions of Part 1.2A, Chapter 2L, Chapter 6CA, Chapter 6D and Part 7.10 of the Corporations Act, subject to the following modifications -- 20 (a) the provisions apply as if a co-operative were a company; (b) a reference in the provisions to a corporation includes a reference to a co-operative; (c) a reference in the provisions to ASIC is to be read as a 25 reference to the Registrar; (d) any other changes, within the meaning of the Corporations (Ancillary Provisions) Act 2001 Part 3, that are prescribed by the regulations. page 151 [Draft Bill for public comment]

Co-operatives Bill 2006 Part 10 Funds and property Division 1 Power to raise money s. 256 (2) The provisions of the Corporations Act applying to the debentures of a co-operative by this section do not apply to the following -- (a) a loan to which section 260 applies; 5 (b) an issue of debentures of a co-operative that is made -- (i) solely to members; or (ii) solely to members and employees of the co-operative; or (iii) to a person who on becoming an inactive 10 member of the co-operative has had his or her share capital converted to debt. (3) Words used in this section that are not defined in this Act have the same meanings as in the Corporations Act. 256. Application of Corporations to particular issues of 15 debentures An issue of debentures to which section 257 applies is declared to be an applied Corporations legislation matter for the Corporations (Ancillary Provisions) Act 2001 Part 3 in relation to the Corporations Act, sections 722 and 734, subject to the 20 following modifications -- (a) the provisions apply as if a co-operative were a company; (b) a reference in the provisions to a disclosure document is to be read as a reference to a disclosure statement under 25 section 257; (c) a reference in the provisions to securities is to be read as a reference to debentures; (d) a reference in the provisions to ASIC is to be read as a reference to the Registrar; 30 (e) any other modifications, within the meaning of the Corporations (Ancillary Provisions) Act 2001 Part 3 that are prescribed under the regulations. page 152 [Draft Bill for public comment]

Co-operatives Bill 2006 Funds and property Part 10 Power to raise money Division 1 s. 257 257. Disclosure statement (1) This section applies to the issue of debentures of a co-operative if the issue is made -- (a) solely to members; or 5 (b) solely to members and employees of the co-operative. (2) Before issuing to a person debentures to which this section applies, a co-operative must give the person a disclosure statement, approved by the Registrar, and containing the information that is reasonably necessary to enable a person to 10 make an informed assessment of the financial prospects of the co-operative, including -- (a) the purpose for which the money raised by the co-operative by the issue of debentures is to be used; and 15 (b) the rights and liabilities attaching to the debentures; and (c) the financial position of the co-operative; and (d) the interests of the directors of the co-operative in the issue of the debentures; and (e) compensation or consideration to be paid to officers or 20 members of the co-operative in connection with the issue of debentures; and (f) other matters that the Registrar directs. (3) Sections 16 (except subsection (3)) and 29 apply to the approval of a disclosure statement under this section with any necessary 25 changes and, in particular, as if a reference in section 16 to a formation meeting were a reference to the issue of debentures. 258. Approval of board for transfer of debentures A debenture of a co-operative cannot be sold or transferred except with the consent of the board and in accordance with the 30 rules of the co-operative. page 153 [Draft Bill for public comment]

Co-operatives Bill 2006 Part 10 Funds and property Division 1 Power to raise money s. 259 259. Application of Corporations Act -- reissue of redeemed debentures Debentures issued by a co-operative to any of its members or employees are declared to be applied Corporations legislation 5 matters for the purposes of the Corporations (Ancillary Provisions) Act 2001 Part 3 in relation to the Corporations Act section 124(1)(b) or 563AAA as if a co-operative were a company. 260. Compulsory loan by member to co-operative 10 (1) If authorised by the rules of the co-operative, the co-operative may require its members to lend money, with or without security, to the co-operative, in accordance with a proposal approved by special resolution of the co-operative. (2) The proposal must not require a loan to be for a term of more 15 than 7 years or another term prescribed by the regulations. (3) The proposal must -- (a) be accompanied by a disclosure statement, approved by the Registrar, that explains the purpose for which the money raised by the co-operative under the proposal is 20 to be used, and includes any other information that the Registrar directs; and (b) show the total amount of the loan to be raised by the co-operative and the basis on which the money required to be lent by each member is to be calculated; and 25 (c) be accompanied by a statement informing the member that the member may inform the board by notice on or before the date specified in the statement, being a date before the passing of the special resolution, that the member resigns on the passing of the special resolution. 30 (4) If the proposal allows, the board of the co-operative may, under the terms of the proposal, deduct the money required to be lent by a member to the co-operative from money payable from the page 154 [Draft Bill for public comment]

Co-operatives Bill 2006 Funds and property Part 10 Power to raise money Division 1 s. 261 co-operative to the member for his or her dealings with the co-operative. (5) A proposal to deduct money referred to in subsection (4) must, in addition to meeting the requirements of subsection (3), 5 show -- (a) the basis on which the money is to be deducted; and (b) the time and way of making the deductions. (6) When approved the proposal is binding on -- (a) all members of the co-operative at the date of passing of 10 the special resolution, other than a member who has given a notice of resignation in accordance with subsection (3)(c); and (b) all persons who become members of the co-operative after that date and before the total amount of the loan to 15 be raised under the proposal has been raised. (7) Sections 16 (except subsection (3)) and 29 apply to the approval of a disclosure statement under this section with any necessary changes and in particular as if a reference in section 16 to a formation meeting were a reference to the special resolution. 20 261. Interest payable on compulsory loan (1) The rate of interest payable by a co-operative on a loan under section 260 during a period is -- (a) in the case of a co-operative with share capital -- (i) the rate (or if there is more than one rate, the 25 higher or highest rate) of dividend payable for the period on the share capital of the co-operative; or (ii) if the rate of dividend payable for the period has not been determined, the rate (or the higher or 30 highest rate) of dividend payable for the page 155 [Draft Bill for public comment]

Co-operatives Bill 2006 Part 10 Funds and property Division 2 Co-operative capital units s. 262 immediately preceding period for which a rate has been determined; or (iii) if a rate of dividend has never been determined for the share capital of the co-operative, the rate 5 that the board of the co-operative considers reasonable; or (b) in the case of a co-operative without share capital, the rate that the board of the co-operative considers 10 reasonable; or (c) if the rules provide for a rate to be payable that is higher than the rate applicable under paragraph (a) or (b), that higher rate. (2) A member may agree to the rate of interest being less than the 15 rate that would otherwise be payable under this section and may agree to no interest being paid. Division 2 -- Co-operative capital units 262. General nature of co-operative capital units (1) A co-operative capital unit ("CCU") is an interest issued by a 20 co-operative conferring an interest in the capital, but not the share capital, of the co-operative. (2) A CCU -- (a) is personal property; and (b) is transferable or transmissible as provided by this Act 25 and the rules of the co-operative, subject to the terms of issue of the CCU; and (c) is, subject to the rules of the co-operative, capable of devolution by will or by operation of law. page 156 [Draft Bill for public comment]

Co-operatives Bill 2006 Funds and property Part 10 Co-operative capital units Division 2 s. 263 (3) Subject to subsection (2) -- (a) the laws applicable to ownership of and dealing with personal property apply to a CCU as they apply to other property; and 5 (b) equitable interests in respect of a CCU may be created, dealt with and enforced as in the case of other personal property. (4) A transferor of a CCU remains the holder of the CCU until the transfer is registered and the name of the transferee, and the 10 details of the transferee's CCU holding, are entered in the register of CCU holders referred to in section 235(1). (5) Despite any rule of law or equity to the contrary, a condition subject to which a CCU is issued is not invalid merely because the CCU is, by the condition, made irredeemable or redeemable 15 only on the happening of a contingency however remote or at the end of a period however long. 263. Priority of CCU's on winding up (1) On a winding up of a co-operative, a debt owed to a person as the holder or former holder of a CCU issued by the co-operative 20 is to rank for priority of payment in accordance with the terms of issue of the CCU. (2) Such a debt may rank as a secured debt if it is secured but if it is unsecured may not rank in priority to other unsecured debts. (3) It may rank equally with or behind unsecured debts and, if the 25 debt ranks behind unsecured debts, may rank in priority to, equally with or behind debts due to contributories. 264. Financial accommodation provisions apply to issue of CCUs (1) The issuing of CCUs is to be considered to be the obtaining of financial accommodation and accordingly Part 10 Division 1 30 applies to the issue of CCUs. page 157 [Draft Bill for public comment]

Co-operatives Bill 2006 Part 10 Funds and property Division 2 Co-operative capital units s. 265 (2) For the purposes of that Division, a CCU is to be considered to be a debenture. 265. CCUs to be issued to non-members CCUs may be issued to a person whether or not the person is a 5 member of the co-operative. 266. Minimum requirements for rules concerning CCUs The rules of a co-operative that permit the co-operative to issue CCUs must contain provision to the effect of the following provisions and must not contain provisions that are inconsistent 10 with the following provisions -- (a) each holder of a CCU is entitled to one vote only at a meeting of the holders of CCUs; (b) the rights of the holders of CCUs may be varied only in the way and to the extent provided by their terms of 15 issue and only with the consent of at least 75% of the holders of CCUs given in writing at a meeting; (c) the holder of a CCU has, in the person's capacity as a holder of a CCU, none of the rights or entitlements of a member of the co-operative; 20 (d) the holder of a CCU is entitled to receive notice of all meetings of the co-operative and all other documents in the same manner as the holder of a debenture of the co-operative. 267. CCUs not to be issued unless terms of issue approved by 25 Registrar (1) A co-operative is not to issue CCUs unless -- (a) the terms of issue have been approved by a special resolution of the co-operative; and (b) the issue is made pursuant to an offer accompanied by a 30 copy of a statement approved by the Registrar under subsection (3); and page 158 [Draft Bill for public comment]

Co-operatives Bill 2006 Funds and property Part 10 Co-operative capital units Division 2 s. 268 (c) the Registrar approves of the terms of the issue under subsection (4). (2) The terms of issue must include, but is not limited to including, the following information -- 5 (a) details of entitlement to repayment of capital; (b) details of entitlement to participate in surplus assets and profits; (c) details of entitlement to interest on capital, including whether interest is cumulative or non-cumulative; 10 (d) details of how capital and interest on capital are to rank for priority of payment on a winding up; (e) whether there is a limit on the total holding of CCUs that may be acquired by persons who are not members of the co-operative and, if there is a limit, what the 15 limit is. (3) The statement approved by the Registrar for the purposes of the issue is to set out the terms of the issue, the rights of the holders of CCUs, the terms of redemption and the manner of transferability of CCUs. 20 (4) The Registrar is not to approve the terms of issue unless satisfied that they will not result in a failure to comply with co-operative principles and are not contrary to the rules of the co-operative or this Act. 268. Directors' duties concerning CCUs 25 In discharging their duties, it is proper for the directors of a co-operative to take into account that the holders of CCUs, in their capacity as holders of CCUs, have none of the rights and entitlements of, and are not entitled to be regarded as, members of the co-operative. page 159 [Draft Bill for public comment]

Co-operatives Bill 2006 Part 10 Funds and property Division 2 Co-operative capital units s. 269 269. Redemption of CCUs (1) The redemption of CCUs is not to be considered to be a reduction in the share capital of the co-operative. (2) A co-operative may redeem CCUs but only on the terms and in 5 the way that is provided by the terms of their issue and only if they are fully paid up. (3) CCUs may not be redeemed except out of -- (a) profits that would otherwise be available for dividends; or 10 (b) the proceeds of a fresh issue of shares, or an approved issue of CCUs, made for the purpose of the redemption. (4) An issue of CCU's is an approved issue for the purposes of subsection (3) if there is the same entitlement to priority of payment of capital and dividend in relation to shares in the 15 co-operative as there was for the redeemed CCUs. (5) Any premium payable on redemption is to be provided for out of profits or out of the share premium account or an account created for that purpose. 270. Capital redemption reserve 20 (1) This section applies if CCUs are redeemed out of profits that would otherwise be available for dividends. (2) Out of profits that would otherwise have been available for dividends there is to be transferred to a reserve called the capital redemption reserve a sum equal to the nominal amount of the 25 CCUs redeemed. (3) The provisions of this Act relating to the reduction of share capital of a co-operative apply as if the capital redemption reserve were paid-up share capital of the co-operative. page 160 [Draft Bill for public comment]

Co-operatives Bill 2006 Funds and property Part 10 Charges Division 3 s. 271 (4) The capital redemption reserve may be applied in paying up unissued shares of the co-operative to be issued to members of the co-operative as fully-paid bonus shares. 271. Issue of shares in substitution for redemption 5 (1) If a co-operative has redeemed or is about to redeem CCUs held by an active member of the co-operative, it may -- (a) issue shares to the member up to the sum of the nominal value of the CCUs redeemed or to be redeemed, as if those CCUs had never been issued; or 10 (b) pay up amounts unpaid on shares held by the member up to the sum of the nominal value of the CCUs redeemed or to be redeemed, as if those CCUs had never been issued. (2) This section applies only if the terms of issue of the CCUs 15 provide for the conversion of CCUs held by an active member of the co-operative into shares of the co-operative. Division 3 -- Charges 272. Registration of charges Schedule 3 has effect but does not apply to -- 20 (a) a mortgage, charge or encumbrance that is over specific land and is registered under the Transfer of Land Act 1893; or (b) a mortgage, charge or encumbrance registered under the Mining Act 1978. 25 Division 4 -- Receivers and other controllers of property of co-operatives 273. Receivers and other controllers of property of co-operatives Schedule 4 has effect. page 161 [Draft Bill for public comment]

Co-operatives Bill 2006 Part 10 Funds and property Division 5 Disposal of surplus from activities s. 274 Division 5 -- Disposal of surplus from activities 274. Retention of surplus for benefit of co-operative The board of a co-operative may resolve to retain all or part of the surplus arising in a year from the business of the 5 co-operative to be applied for the benefit of the co-operative. 275. Application for charitable purposes or members' purposes (1) The rules of a co-operative may authorise the co-operative to apply a part of the surplus arising in a year from the business of the co-operative for a charitable purpose. 10 (2) The rules of a trading co-operative may authorise the co-operative to apply a part of the surplus arising in a year from the business of the co-operative towards supporting an activity approved by the co-operative. (3) The rules must limit the amount that may be applied under 15 subsection (1) or (2) to a specified proportion of the surplus. (4) A co-operative may apply part of the surplus for a purpose and to the extent authorised by rules under subsection (1) or (2). 276. Distribution of surplus or reserves to members (1) In this section -- 20 "limited dividend" means a dividend that is not more than the amount prescribed by the regulations. (2) The rules of a trading co-operative may authorise a co-operative to apply a part of the surplus arising in any year from the business of the co-operative or a part of the reserves of the 25 co-operative by -- (a) distribution to members as a rebate in proportion to the value of business done by each member with the co-operative or to profits earned by the co-operative on business done by each member with the co-operative; or page 162 [Draft Bill for public comment]

Co-operatives Bill 2006 Funds and property Part 10 Disposal of surplus from activities Division 5 s. 277 (b) the issue of bonus shares to members in proportion to the value of business done by each member with the co-operative, to profits earned by the co-operative on business done by each member with the co-operative or 5 to shares held by the member; or (c) the issue to members of a limited dividend in proportion to shares held by the member. (3) The amount of a rebate or dividend payable to a member under subsection (2)(a) or (c) may, with the consent of the member, be 10 applied -- (a) in payment for the issue to the member of bonus shares; or (b) as a loan to the co-operative. 277. Application of surplus to other persons 15 (1) If authorised by its rules, a part of the surplus arising in a year from the business of a trading co-operative may be credited to a person who is not a member, but is qualified to be a member, by way of rebate in proportion to the value of business done by the person with the co-operative or to the profit earned by the 20 co-operative on business done by the person with the co-operative, if -- (a) the person was a member when the business was done and the membership has lapsed; or (b) the person has applied for membership since the 25 business was done. (2) Nothing in this section precludes the payment of a bonus to an employee in accordance with the terms of his or her employment. page 163 [Draft Bill for public comment]

Co-operatives Bill 2006 Part 10 Funds and property Division 6 Acquisition and disposal of assets s. 278 Division 6 -- Acquisition and disposal of assets 278. Acquisition and disposal of assets (1) In this section -- "undertaking", of a co-operative, means all the assets of the 5 co-operative. (2) Unless otherwise provided by the rules, a co-operative must not do any of the following things except as approved by special resolution by means of a special postal ballot -- (a) sell, or lease as a going concern -- 10 (i) the undertaking of the co-operative; or (ii) a part of that undertaking that relates to its primary activities and the value of which represents the percentage prescribed by the regulations or more of the total value of the 15 undertaking; (b) acquire from or dispose of to a director or employee of the co-operative, or a relative, within the meaning of the Corporations Act, of a director or employee of the co-operative or of the spouse of a director or employee 20 of the co-operative, property the value of which represents the percentage prescribed by the regulations, or more, of the total value of all the assets of the co-operative that relate to its primary activities; (c) acquire an asset the value of which represents the 25 percentage prescribed by the regulations, or more, of the total value of the assets of the co-operative, if the acquisition would result in the co-operative starting to carry on an activity that is not one of its primary activities; 30 (d) dispose of an asset, if the disposal would result in the co-operative ceasing to carry on a primary activity of the co-operative, or in the ability of the co-operative to carry page 164 [Draft Bill for public comment]

Co-operatives Bill 2006 Funds and property Part 10 Acquisition and disposal of assets Division 6 s. 278 on a primary activity of the co-operative being substantially impaired. Penalty: a fine of $6 000. (3) If a co-operative contravenes this section, each person who is a 5 member of the board of the co-operative is taken to have committed an offence unless the person satisfies the court that he or she used all due diligence to prevent the contravention by the co-operative. Penalty: a fine of $6 000. 10 (4) The Registrar may, by order published in the Gazette, exempt a co-operative from compliance with a provision of this section and section 191 in relation to any matter to which this section applies. page 165 [Draft Bill for public comment]

Co-operatives Bill 2006 Part 11 Restrictions on the acquisition of interests in co-operatives Division 1 Restrictions on share and voting interests s. 279 Part 11 -- Restrictions on the acquisition of interests in co-operatives Division 1 -- Restrictions on share and voting interests 279. Application of Part 5 This Part applies to trading co-operatives. 280. Notice required to be given of voting interest (1) A person, whether or not a member of the co-operative, must give notice to a co-operative within 5 business days after becoming aware that the person has a relevant interest in the 10 right to vote of a member of the co-operative. Penalty: a fine of $2 000. (2) A person, whether or not a member of the co-operative, who has ceased to have a relevant interest in the right to vote of a member of a co-operative must give notice to the co-operative 15 within 5 business days after becoming aware of the fact. Penalty: a fine of $2 000. (3) Section 176 provides for the effect of a person having a relevant interest in the right to vote of a member of a co-operative. 281. Notice required to be given of substantial share interest 20 (1) A person must give notice to a co-operative within 5 business days after becoming aware that the person has a substantial share interest in the co-operative. Penalty: a fine of $2 000. (2) A person who has a substantial share interest in a co-operative 25 must give notice to the co-operative within 5 business days after becoming aware that a substantial change has occurred in the share interest. Penalty: a fine of $2 000. page 166 [Draft Bill for public comment]

Co-operatives Bill 2006 Restrictions on the acquisition of interests in co-operatives Part 11 Restrictions on share and voting interests Division 1 s. 282 (3) A person who has ceased to have a substantial share interest in a co-operative must give notice to the co-operative within 5 business days after becoming aware that the person has ceased to have the interest. 5 Penalty: a fine of $2 000. (4) A person has a "substantial share interest" in a co-operative if the nominal value of the shares in the co-operative in which the person has a relevant interest represents 5% or more of the nominal value of the issued share capital of the co-operative. 10 (5) A "substantial change" takes place in a person's share interest in a co-operative if there is an increase or decrease in the number of shares in the co-operative in which the person has a relevant interest and the increase or decrease represents at least 1% of the nominal value of the issued share capital of the 15 co-operative. 282. Requirements for notices A notice required under this Division must -- (a) be in the form approved by the Registrar; and (b) state the particulars, prescribed by the regulations, of the 20 interest or change being notified. 283. Maximum permissible level of share interest (1) A person must not have a relevant interest in shares of a co-operative the nominal value of which is more than 20% of the nominal value of the issued share capital of the co-operative. 25 (2) The Registrar, by order published in the Gazette, may specify a maximum greater than 20% as the maximum permissible level of share interest for the purposes of subsection (1) for a particular co-operative. (3) Unless an order under subsection (2) is in force, a co-operative, 30 by its rules, may specify a maximum less than 20% as the page 167 [Draft Bill for public comment]

Co-operatives Bill 2006 Part 11 Restrictions on the acquisition of interests in co-operatives Division 1 Restrictions on share and voting interests s. 284 maximum permissible level of share interest for the purposes of subsection (1) for that co-operative. (4) The maximum permissible level of share interest applying under this section may be increased for a particular person by special 5 resolution of the co-operative concerned passed by a special postal ballot. (5) A resolution under subsection (4) does not have effect unless -- (a) it is approved by the Registrar; or (b) the person concerned is another co-operative. 10 (6) The Registrar's approval of the resolution may be given on conditions. 284. Transitional provision (1) This section applies to a member of a transferred co-operative whose relevant interest in the shares of that co-operative 15 immediately before the transfer day was more than the maximum permissible level of share interest for the purposes of section 283(1). (2) The maximum permissible level of share interest for the purposes of section 283(1) for the member is the level of the 20 member's relevant interest in the shares immediately before the transfer day. (3) In relation to a particular co-operative, this section ceases to operate 6 months after the transfer day. 285. Shares to be forfeited to remedy contravention 25 (1) If a person has a relevant interest in a share of a co-operative in contravention of this Division, the board of the co-operative must declare to be forfeited enough of the shares in which the person has a relevant interest to remedy the contravention. page 168 [Draft Bill for public comment]

Co-operatives Bill 2006 Restrictions on the acquisition of interests in co-operatives Part 11 Restrictions on share and voting interests Division 1 s. 286 (2) The shares to be forfeited are -- (a) the shares nominated by the person for the purpose; or (b) in the absence of such a nomination, the shares in which the person has had a relevant interest for the shortest 5 time. (3) A declaration of the board that shares are forfeited operates to forfeit the shares concerned. (4) On forfeiture of the shares, section 300(1)(b) ceases to apply in relation to the contravention. 10 (5) Sections 130 to 132 apply to shares forfeited under this section as if the shares had been forfeited under Part 6. 286. Powers of board in response to suspected contravention (1) If the board of a co-operative is satisfied on reasonable grounds that a person has contravened section 283 in relation to the 15 co-operative, the board may do either or both of the following -- (a) refuse to register a share transfer involving the person; (b) suspend a stated right or entitlement that a person has as a member of the co-operative or attaching to any shares 20 of the co-operative in which the person has a relevant interest. (2) The board may request a person who it suspects has a relevant interest in shares of the co-operative to give specified information to the board about the interest. 25 (3) A failure by a person to comply with a request under subsection (2) is a reasonable ground for being satisfied that the person has contravened section 283. 287. Powers of Supreme Court in relation to contravention (1) If a person has contravened section 283 in relation to a 30 co-operative, the Supreme Court may, on the application of the page 169 [Draft Bill for public comment]

Co-operatives Bill 2006 Part 11 Restrictions on the acquisition of interests in co-operatives Division 1 Restrictions on share and voting interests s. 288 co-operative or the Registrar, make any order it considers appropriate. (2) Without limiting subsection (1), an order may include -- (a) a remedial order; and 5 (b) for the purpose of securing compliance with any other order made under this section, an order directing the co-operative or any other person to do or refrain from doing a specified act. (3) An order may be made whether or not the contravention 10 continues. (4) Proof to the satisfaction of the Supreme Court at the hearing of an application that -- (a) a person has a relevant interest in a share of a co-operative because an associate of the person has a 15 relevant interest in a share; and (b) the associate became entitled to the relevant interest within 6 months before the application was filed with the Supreme Court, is evidence that the associate was an associate of the person 20 from the time the person first had the relevant interest until the date of the hearing. 288. Co-operative to notify Registrar of interest over 20% (1) A co-operative must notify the Registrar in writing within 14 days after the board becomes aware that -- 25 (a) a particular person has a relevant interest in shares of the co-operative the nominal value of which is more than 20% of the nominal value of the issued share capital of the co-operative; or (b) there has been a change in the number of shares in 30 which that person holds a relevant interest. page 170 [Draft Bill for public comment]

Co-operatives Bill 2006 Restrictions on the acquisition of interests in co-operatives Part 11 Restrictions on share and voting interests Division 1 s. 289 (2) The notification must give details of the relevant interest concerned or of the change concerned. 289. Co-operative to keep register (1) A co-operative must keep a register of notifiable interests. 5 (2) The co-operative must enter in the register in alphabetical order the names of persons from whom the co-operative has received notice under this Division together with the information contained in the notice. (3) The register must be open for inspection -- 10 (a) by a member in accordance with section 237; and (b) by any other person on payment of the fee (if any) that the co-operative may require, being not more than the maximum fee prescribed by the regulations. 290. Unlisted companies to provide list of shareholders etc. 15 (1) This section applies to a company, within the meaning of the Corporations Act, that is not a listed corporation, within the meaning of that Act. (2) A company to which this section applies that is a member of a co-operative must give to the co-operative a list showing -- 20 (a) the name of each member of the company as at the end of the financial year of the company and the number of shares in the company held by each member; and (b) the name of each person who has a relevant interest, within the meaning of the Corporations Act, in a share 25 of the company together with details of the interest; and (c) the name of each person who is an associate, within the meaning of the Corporations Act, of the company. (3) A list under subsection (2) must be given within 28 days after a written request for the list is made to the company by the 30 co-operative or the Registrar. page 171 [Draft Bill for public comment]

Co-operatives Bill 2006 Part 11 Restrictions on the acquisition of interests in co-operatives Division 1 Restrictions on share and voting interests s. 291 (4) The details to be shown on the list are the details as at the date specified in the request. (5) The Registrar may make a request under subsection (3) if the Registrar is of the opinion that the company is or may be 5 involved in a suspected contravention of a provision of this Division. 291. Excess share interest not to affect loan liability (1) This section applies if a co-operative has made a loan to a member and the member had or has a relevant interest in shares 10 of the co-operative in contravention of this Division. (2) Until the amount lent to the member has been repaid to the co-operative, with any interest payable, the member is liable to make to the co-operative the payments that the member would be liable to make if all the shares concerned were lawfully held 15 by the member. (3) Security for the repayment of the loan is not affected by a contravention of this Division. 292. Extent of operation of Division This Division -- 20 (a) applies to all natural persons, whether resident in this State or in Australia or not and whether Australian citizens or not, and to all bodies, whether incorporated or not, and whether carrying on business in this State or in Australia or not; and 25 (b) extends to acts done or omitted to be done outside this State, whether in Australia or not. 293. Registrar may grant exemption from Division The Registrar may, by order published in the Gazette, exempt a person from the operation of this Division. page 172 [Draft Bill for public comment]

Co-operatives Bill 2006 Restrictions on the acquisition of interests in co-operatives Part 11 Restrictions on certain share offers Division 2 s. 294 Division 2 -- Restrictions on certain share offers 294. Share offers to which Division applies This Division applies to the following offers to purchase shares in a co-operative -- 5 (a) an offer made as part of a proposal for, or that is conditional on, the sale of the undertaking or part of the undertaking, as a going concern, of the co-operative; (b) an offer made as part of a proposal for, or that is conditional on, the registration of the co-operative as a 10 company under the Corporations Act; (c) an offer made as part of a proposal for, or that is conditional on, the winding up of the co-operative; (d) an offer that would result in a contravention of section 283 were the offeror to be registered, 15 immediately after the offer is made, as the holder of the shares that are the subject of the offer. 295. Requirements to be satisfied before offer can be made A person must not make an offer to which this Division applies unless the making of the offer has been approved -- 20 (a) by special resolution by means of a special postal ballot; and (b) by the Registrar. 296. Some offers totally prohibited if they discriminate An offer referred to in section 294(a) to (d) must not 25 discriminate between members who are active members and members who are not active members. page 173 [Draft Bill for public comment]

Co-operatives Bill 2006 Part 11 Restrictions on the acquisition of interests in co-operatives Division 2 Restrictions on certain share offers s. 297 297. Offers to be submitted to board first (1) Any proposal to make an offer to which this Division applies must in the first instance be submitted to the board of the co-operative. 5 (2) The board may decline to put a proposed offer to a special postal ballot unless arrangements satisfactory to the board have been made for payment to the co-operative of the expenses involved in holding the ballot. (3) The board may require payment in advance under 10 subsection (2). (4) A requisition for a special postal ballot for the purposes of this Division cannot be served unless and until the board has had a reasonable opportunity to consider the proposed offer concerned. 15 (5) For the purposes of subsection (4), a period of 28 days is a reasonable opportunity for considering a proposed offer but the Registrar may extend that period in a particular case, whether before or after the end of the 28 days, by written notice to the co-operative. 20 298. Announcements of proposed takeovers concerning proposed company (1) This section applies to an offer to purchase shares in a co-operative made as part of a proposal for, or that is conditional on, the registration of the co-operative as a company 25 (the "proposed company") under the Corporations Act. (2) A person must not make a public announcement to the effect that the person proposes, or that the person and another person or other persons together propose, to make takeover offers, or to cause a takeover announcement to be made, in relation to the 30 proposed company if -- (a) the person knows that the announcement is false or is recklessly indifferent as to whether it is true or false; or page 174 [Draft Bill for public comment]

Co-operatives Bill 2006 Restrictions on the acquisition of interests in co-operatives Part 11 Restrictions on certain share offers Division 2 s. 298 (b) the person has no reasonable grounds for believing that the person, or the person and the other person or persons, will be able to perform obligations arising under the scheme or announcement or under the 5 Corporations Act in relation to the scheme or announcement if a substantial proportion of the offers or the offers made under the announcement are accepted. Penalty: a fine of $20 000 or imprisonment for 5 years. (3) If a person makes a public announcement to the effect that the 10 person proposes, or that the person and another person or other persons together propose, to make a takeover bid in relation to the proposed company, the person must proceed to make a takeover bid in relation to shares in the company in accordance with the public announcement within 2 months after the day on 15 which the company is incorporated. Penalty: a fine of $10 000 or imprisonment for 2 years. (4) A person is not liable to be convicted of more than one offence under subsection (3) for any one public announcement. (5) A person who contravenes this section, whether or not the 20 person is convicted of an offence for the contravention, is liable to pay compensation to a person who suffered loss as a result of entering into a share transaction in reliance on the public announcement concerned. (6) The amount of that compensation is the difference between the 25 price of the shares at which the transaction was entered into and the price of the shares at which the transaction would have been likely to have been entered into if the person had not made the public announcement. (7) A person does not contravene subsection (3) and is not liable to 30 pay compensation for the contravention if it is proved that the person could not reasonably have been expected to make the takeover bid concerned -- (a) as a result of circumstances that existed when the public announcement was made but of which the person had no page 175 [Draft Bill for public comment]

Co-operatives Bill 2006 Part 11 Restrictions on the acquisition of interests in co-operatives Division 2 Restrictions on certain share offers s. 299 knowledge and could not reasonably have been expected to have knowledge; or (b) as a result of a change in circumstances after the announcement was made, other than a change in 5 circumstances caused directly or indirectly by the person. (8) Expressions used in this section have the same meanings as in the Corporations Law section 746 as applying on 12 March 2000. 10 299. Additional disclosure requirements for offers involving conversion to company If an offer is part of a proposal for, or is conditional on, the registration of the co-operative as a company under the Corporations Act, the disclosure statement required to be sent to 15 members for the purposes of the special postal ballot relating to the offer must contain the following additional information -- (a) full particulars of any proposal by which a director will acquire a relevant interest in a share of the company to be formed; 20 (b) other information that is material to the making of a decision by a member whether or not to agree to the making of the offer, being information that is within the knowledge of the directors and has not previously been disclosed to the members; 25 (c) other information that the Registrar directs. 300. Consequences of prohibited offer (1) If a person makes an offer to purchase shares in a co-operative in contravention of this Division -- (a) the person cannot be registered as the holder of the 30 shares concerned; and page 176 [Draft Bill for public comment]

Co-operatives Bill 2006 Restrictions on the acquisition of interests in co-operatives Part 11 Restrictions on certain share offers Division 2 s. 301 (b) if the transfer of the shares is registered, the person cannot vote at a meeting of, or in a postal ballot conducted by, the co-operative. (2) A vote cast by or for a member when the member cannot vote 5 because of this section must be disregarded. 301. Registrar may grant exemptions The Registrar may, by order published in the Gazette, exempt a person or co-operative from compliance with a provision of this Division and section 191 in relation to a matter to which this 10 Division applies. page 177 [Draft Bill for public comment]

Co-operatives Bill 2006 Part 12 Merger, transfer of engagements, winding up Division 1 Mergers and transfers of engagements s. 302 Part 12 -- Merger, transfer of engagements, winding up Division 1 -- Mergers and transfers of engagements 302. Application of Division 5 This Division does not apply to a merger or transfer of engagements to which Part 14 applies. 303. Mergers and transfers of engagements of local co-operatives Any 2 or more co-operatives may consolidate all or any of their assets, liabilities and undertakings by way of merger or transfer 10 of engagements approved under this Division. 304. Requirements before application can be made (1) Before co-operatives can apply for approval under this Division of a merger or transfer of engagements, the proposed merger or transfer must have been approved by each of the co-operatives 15 by -- (a) a special resolution passed by means of a special postal ballot; or (b) if permitted by subsection (2), a resolution of the board of the co-operative. 20 (2) The proposed merger or transfer of engagements may be approved by resolution of the board of a co-operative if the Registrar consents to that procedure applying in the particular case. 305. Disclosure statement required 25 (1) A special resolution by which members of a co-operative approve a merger or transfer of engagements is not effective for the purposes of this Division unless this section has been complied with. page 178 [Draft Bill for public comment]

Co-operatives Bill 2006 Merger, transfer of engagements, winding up Part 12 Mergers and transfers of engagements Division 1 s. 305 (2) Each co-operative must send to each of its members a disclosure statement approved by the Registrar stating -- (a) the financial position of each co-operative concerned in the proposed merger or transfer of engagements as 5 shown in financial statements that have been prepared as at a date that is not more than 6 months before the date of the statement; and (b) any interest that any officer of each co-operative has in the proposed merger or transfer of engagements; and 10 (c) any compensation or other consideration proposed to be paid, or any other incentive proposed to be given, to any officer or member of each co-operative in relation to the proposed merger or transfer of engagements; and (d) whether the proposal is a merger or transfer of 15 engagements and the reason for the merger or transfer of engagements; and (e) in the case of a transfer of engagements, whether it is a total or partial transfer of engagements; and (f) other information that the Registrar directs. 20 (3) The disclosure statement must be sent to the members of each co-operative so that it will, in the ordinary course of post, reach each member who is entitled to vote on the special resolution not later than 21 days before the day on or before which the ballot papers must be returned by members voting in the special 25 postal ballot. (4) The Registrar may, by order published in the Gazette, exempt a co-operative from complying with this section. (5) The Registrar may approve a disclosure statement on any conditions he or she considers appropriate. page 179 [Draft Bill for public comment]

Co-operatives Bill 2006 Part 12 Merger, transfer of engagements, winding up Division 1 Mergers and transfers of engagements s. 306 306. Making an application (1) An application for approval of a merger or transfer of engagements under this Division must be made to the Registrar in the way and form required by the Registrar. 5 (2) An application for approval of a merger must be accompanied by 2 copies of the proposed rules of the merged co-operative and any other particulars required by the Registrar. 307. Approval of merger (1) The Registrar must approve a merger pursuant to an application 10 under this Division if satisfied that -- (a) this Division has been complied with in relation to the application; and (b) the proposed rules of the merged co-operative are consistent with this Act and may reasonably be 15 approved; and (c) the certificates of registration of the co-operatives have been surrendered to the Registrar; and (d) there is no good reason why the merged co-operative and its rules should not be registered. 20 (2) On approving an application for merger, the Registrar must -- (a) cancel the registration of the co-operatives involved in the merger; and (b) register the merged co-operative and its rules; and (c) issue to the merged co-operative a certificate of 25 registration under this Act. (3) A merger takes effect on the issue of the certificate of registration for the merged co-operative. page 180 [Draft Bill for public comment]

Co-operatives Bill 2006 Merger, transfer of engagements, winding up Part 12 Mergers and transfers of engagements Division 1 s. 308 308. Approval of transfer of engagements (1) The Registrar must approve a transfer of engagements pursuant to an application under this Division if satisfied that -- (a) this Division has been complied with in relation to the 5 application; and (b) the rules or proposed rules of the transferee co-operative are adequate; and (c) in the case of a total transfer of engagements from a co-operative, the certificate of registration of the 10 co-operative has been surrendered to the Registrar; and (d) there is no good reason why the transfer of engagements should not take effect. (2) A transfer of engagements takes effect on the day specified in the approval of the Registrar. 15 309. Transfer of engagements by direction of Registrar (1) The Registrar may, with the approval of the Minister, direct a co-operative -- (a) to transfer its engagements to a co-operative approved by the Registrar; and 20 (b) within a period specified by the Registrar when giving the direction or a further period allowed by the Registrar, to enter into an agreement approved by the Registrar to give effect to the transfer of engagements directed. 25 (2) The Registrar must not give such a direction to a co-operative unless the necessary grounds exist for the giving of the direction, as referred to in section 341(2). (3) The transfer of engagements must make provision, in a way approved by the Registrar, for the members of the transferor 30 co-operative who wish to do so to become members of the transferee co-operative. page 181 [Draft Bill for public comment]

Co-operatives Bill 2006 Part 12 Merger, transfer of engagements, winding up Division 2 Transfer of incorporation s. 310 (4) If a co-operative fails to comply with a direction under this section, the Registrar may elect to treat the failure as the necessary grounds -- (a) for winding up the co-operative on a certificate of the 5 Registrar; or (b) for appointing an administrator of the co-operative. (5) The Registrar must notify the co-operative of the Registrar's decision under subsection (4). (6) The Registrar may revoke a direction under this section at any 10 time up until the co-operative has agreed pursuant to the direction to transfer its engagements. (7) A transfer of engagements directed under this section takes effect on a day notified by the Registrar in the Gazette. (8) An officer of a co-operative must not -- 15 (a) fail to take all reasonable steps to secure compliance by the co-operative with a direction given under this section; or (b) by a wilful act or omission be the cause of a failure by the co-operative to comply with a direction. 20 Penalty: a fine of $2 000. Division 2 -- Transfer of incorporation 310. Application for transfer (1) A co-operative, if approved under this Division, may apply to become registered or incorporated as one of the following 25 corporations -- (a) a company under the Corporations Act; (b) an incorporated association under the Associations Incorporation Act 1987; (c) a corporation that is incorporated, registered or 30 otherwise established under a law that is a law of a place page 182 [Draft Bill for public comment]

Co-operatives Bill 2006 Merger, transfer of engagements, winding up Part 12 Transfer of incorporation Division 2 s. 311 outside this State and that is prescribed by the regulations. (2) For the purposes of subsection (1)(a), an application is to be made in accordance with the Corporations Act section 601BC 5 for registration as a company under Part 5B of that Act. (3) For the purposes of the Corporations Act section 601BC(8)(d), a co-operative is authorised by this Act to transfer its incorporation. 311. Requirements before application can be made 10 (1) Before an application is made under section 307, the co-operative must, by special resolution passed by means of a special postal ballot -- (a) approve the proposed application; and (b) determine under what name the co-operative is to apply 15 to be incorporated or registered; and (c) adopt a memorandum or articles of association or constitution or replaceable rules or rules that may be necessary or considered desirable. (2) The name applied for need not be the same as that of the 20 co-operative and must not include the word "co-operative" or "cooperative" or another word importing a similar meaning. (3) The regulations may provide that a co-operative is exempt from compliance with a provision of this section and section 191 in relation to a matter to which this section applies. 25 312. Meaning of "new body" and "transfer" The registration or incorporation of a co-operative as a corporation as a result of an application under this Division is referred to in this Division as its "transfer" and the corporation concerned is referred to in this Division as the "new body". page 183 [Draft Bill for public comment]

Co-operatives Bill 2006 Part 12 Merger, transfer of engagements, winding up Division 2 Transfer of incorporation s. 313 313. New body ceases to be registered as co-operative On the transfer of a co-operative under this Division, it ceases to be registered as a co-operative under this Act. 314. Transfer not to impose greater liability etc. 5 (1) The memorandum or articles of association or constitution or replaceable rules or rules adopted for the purposes of the transfer must not be such as to -- (a) impose on the members of the new body who were members of the co-operative at the date of transfer any 10 greater or different liability to contribute to the assets of the new body than the liability to which they were subject as members of the co-operative; or (b) deprive a member of the new body of preferential rights to dividend or capital to which the member was entitled 15 as a member of the co-operative at the date of transfer. (2) The transfer must result in all persons who were members of the co-operative at the date of transfer becoming members of the new body. (3) In the case of a transfer of a co-operative that has a share capital 20 to a new body that has a share capital, the transfer must result in every member of the co-operative at the date of transfer who held shares in the co-operative being the holder of shares in the capital of the new body equal in number and nominal value to the shares held by the member as a member of the co-operative. 25 315. Effect of new certificate of registration A certificate of registration or incorporation as the new body issued by the appropriate officer under the law applicable to the new body is evidence that all the requirements of this Division about registration or incorporation have been complied with. page 184 [Draft Bill for public comment]

Co-operatives Bill 2006 Merger, transfer of engagements, winding up Part 12 Winding up and deregistration Division 3 s. 316 316. New body must give copy of new certificate of registration or incorporation to Registrar On the transfer of a co-operative under this Division, the new body must immediately give the Registrar a copy of its new 5 certificate of registration or incorporation. Penalty: a fine of $1 000. 317. New body is a continuation of the co-operative (1) When a co-operative transfers to a new body, the corporation constituted by the new body is taken to be the same entity as the 10 corporation constituted by the co-operative. (2) Without limiting subsection (1), Division 6 applies to a transfer under this Division. Division 3 -- Winding up and deregistration 318. Methods of winding up 15 (1) A co-operative may be wound up voluntarily or by the Supreme Court or on a certificate of the Registrar. (2) In the case of a winding up voluntarily or by the Supreme Court, the co-operative may be wound up in the same way and in the same circumstances as a company under the Corporations Act 20 may be wound up. 319. Winding up on Registrar's certificate (1) A co-operative may be wound up on a certificate of the Registrar only if the necessary grounds for taking the action exist, as referred to in section 341. 25 (2) A winding up on a certificate of the Registrar starts when the Registrar gives the certificate to the co-operative. page 185 [Draft Bill for public comment]

Co-operatives Bill 2006 Part 12 Merger, transfer of engagements, winding up Division 3 Winding up and deregistration s. 320 (3) On the giving of a certificate, the Registrar may appoint a person to be the liquidator of the co-operative. (4) The liquidator need not be a registered liquidator under the Corporations Act. 5 (5) The liquidator must, within 10 days after appointment, give notice of his or her appointment in the Gazette. (6) The liquidator must give the security prescribed by the regulations and is entitled to receive the fees fixed by the Registrar. 10 (7) Any vacancy occurring in the office of liquidator is to be filled by a person appointed by the Registrar. 320. Method of deregistration A co-operative may be deregistered in the same way and in the same circumstances as a company under the Corporations Act 15 may be deregistered. 321. Application of Corporations Act to winding up and deregistration The winding up or deregistration of a co-operative, and a deregistered co-operative, are declared to be applied 20 Corporations legislation matters for the purposes of the Corporations (Ancillary Provisions) Act 2001 Part 3 in relation to the provisions of the Corporations Act Parts 5.4, 5.4A, 5.4B, 5.5, 5.6, 5.7 and 5A.1, subject to the following modifications -- (a) a reference in the provisions to a special resolution or an 25 extraordinary resolution is to be read as a reference to a special resolution within the meaning of this Act; (b) a reference in the provisions to ASIC is to be read as a reference to the Registrar; page 186 [Draft Bill for public comment]

Co-operatives Bill 2006 Merger, transfer of engagements, winding up Part 12 Winding up and deregistration Division 3 s. 321 (c) section 513B is to be considered to be amended by inserting after paragraph (d) -- " (da) if the winding up is on the certificate of the 5 Registrar -- on the date that the certificate is given; or "; (d) section 516 is to be considered to be amended by inserting after "past member" -- 10 " together with any charges payable by him or her to the co-operative in accordance with the rules "; (e) a reference in the provisions to a registered liquidator is 15 to be read as including a reference to a person approved or appointed by the Registrar as a liquidator of a co-operative; (f) a reference in the provisions to the Corporations Act Part 2F.1 is to be read as a reference to Part 4 Division 5 20 of this Act; (g) for the purposes of the application of the provisions to a winding up on the certificate of the Registrar, the winding up is taken to be a voluntary winding up, but the Corporations Act section 490 does not apply; 25 (h) the provisions are to be read subject to sections 68 and 327 of this Act for the purposes of determining the liability of members and former members to contribute on a winding up of a co-operative; (i) any other modifications, within the meaning of the 30 Corporations (Ancillary Provisions) Act 2001 Part 3, that are prescribed by the regulations. page 187 [Draft Bill for public comment]

Co-operatives Bill 2006 Part 12 Merger, transfer of engagements, winding up Division 3 Winding up and deregistration s. 322 322. Restrictions on voluntary winding up (1) A co-operative may be wound up voluntarily only -- (a) by a creditors' voluntary winding up; or (b) if a special resolution is passed by means of a special 5 postal ballot in favour of voluntary winding up. (2) A regulation may exempt a co-operative from compliance with a provision of this section or section 191. (3) When a special postal ballot referred to in subsection (1)(b) is held, the members may, by means of the same ballot, by simple 10 majority -- (a) appoint one or more liquidators to wind-up the affairs and distribute the assets of the co-operative; and (b) fix the remuneration to be paid to the liquidator. 323. Start of members' voluntary winding up 15 A members' voluntary winding up of a co-operative starts when the result of the special postal ballot is noted in the minute book by the secretary of the co-operative. 324. Distribution of surplus -- non-trading co-operatives (1) In this section -- 20 "surplus property" means property of the co-operative that remains after satisfaction of the debts and liabilities of the co-operative and the costs, charges and expenses of the winding up. (2) On a winding up of a non-trading co-operative, the surplus 25 property of the co-operative must be distributed as required by the rules of the co-operative. (3) The rules of a non-trading co-operative must make provision for the way in which the surplus property of the co-operative is to be distributed in a winding up. page 188 [Draft Bill for public comment]

Co-operatives Bill 2006 Merger, transfer of engagements, winding up Part 12 Winding up and deregistration Division 3 s. 325 325. Liquidator -- vacancy may be filled by Registrar If a co-operative is being wound up voluntarily and a vacancy occurs in the office of liquidator that in the opinion of the Registrar is unlikely to be filled in the way provided by the 5 Corporations Act, as applied by this Division, the Registrar may appoint a person to be liquidator. 326. Review of liquidator's remuneration A member or creditor of a co-operative or the liquidator may at any time before the completion of the winding up of the 10 co-operative apply to the Supreme Court to review the amount of the remuneration of the liquidator. 327. Liability of member to contribute in a winding up where shares forfeited etc. (1) If a person's membership of a co-operative is cancelled under 15 Part 6 within 2 years before the start of the winding up of the co-operative, the person is liable on the winding up to contribute to the property of the co-operative the nominal value of any shares forfeited in connection with that cancellation, being their nominal value immediately before cancellation. 20 (2) If under section 167 a co-operative -- (a) purchases a share of a member in the co-operative; or (b) repays to a member the whole or any part of the amount paid up on a share held by a member, within 2 years before the start of the winding up of the 25 co-operative, the member or former member is liable on the winding up to contribute to the property of the co-operative the amount paid by the co-operative to the member or former member in respect of the purchase or repayment together with any amount unpaid on the shares immediately before the 30 purchase or repayment. page 189 [Draft Bill for public comment]

Co-operatives Bill 2006 Part 12 Merger, transfer of engagements, winding up Division 4 Administration of co-operative -- application of Corporations Act s. 328 (3) If a person contributes to the property of a co-operative under a liability under this section, the amount contributed is, for the purposes of the winding up, to be treated as having been paid up by the person on shares of the co-operative. 5 (4) The liability of a member or former member of a co-operative under this section is in addition to any other liability of the member or former member to contribute to the property of the co-operative on a winding up of the co-operative. Division 4 -- Administration of co-operative -- application of 10 Corporations Act 328. Application of Corporations Act to administration of co-operative A co-operative is declared to be an applied Corporations legislation matter for the purposes of the Corporations 15 (Ancillary Provisions) Act 2001 Part 3 in relation to the provisions of the Corporations Act Part 5.3A and Part 5.9 Division 3, subject to the following modifications -- (a) the provisions are to be read as if a co-operative were a company; 20 (b) a reference in the provisions to the Corporations Act sections 128 and 129 is to be read as a reference to sections 42 to 44, and section 46 of this Act; (c) a reference in the provisions to ASIC is to be read as a reference to the Registrar; 25 (d) any other modifications, within the meaning of the Corporations (Ancillary Provisions) Act 2001 Part 3, that are prescribed by the regulations. page 190 [Draft Bill for public comment]

Co-operatives Bill 2006 Merger, transfer of engagements, winding up Part 12 Appointment of administrator Division 5 s. 329 Division 5 -- Appointment of administrator 329. Appointment of administrator (1) The Registrar may, by written notice, appoint an administrator to conduct the affairs of a co-operative. 5 (2) A notice of appointment must state -- (a) the date of appointment; and (b) the appointee's name; and (c) the appointee's business address. (3) If the appointee's name or business address changes, the 10 appointee must immediately give written notice of the change to the Registrar. (4) The Registrar must not appoint an administrator unless the necessary grounds for taking the action exist, as referred to in section 341(2). 15 330. Effect of appointment of administrator (1) On the appointment of an administrator of a co-operative -- (a) the directors of the co-operative cease to hold office; and (b) all contracts of employment with the co-operative are terminated; and 20 (c) all contracts for the provision of secretarial or administrative services for the co-operative are terminated; and (d) the administrator may terminate any contract for providing other services to the co-operative. 25 (2) An administrator of a co-operative has the functions of the board of the co-operative, including the board's powers of delegation. page 191 [Draft Bill for public comment]

Co-operatives Bill 2006 Part 12 Merger, transfer of engagements, winding up Division 5 Appointment of administrator s. 331 (3) A director of a co-operative must not be appointed or elected while the administrator is in office except as provided by this Division. 331. Revocation of appointment 5 (1) An administrator holds office until the administrator's appointment is revoked. (2) The Registrar may, by written notice, revoke the appointment of an administrator. (3) When a liquidator of a co-operative is appointed, the 10 appointment of any administrator of the co-operative is automatically revoked. (4) Immediately on the revocation of an administrator's appointment, the administrator must prepare and submit a report to the Registrar showing how the administration was carried 15 out, and for that purpose an administrator has access to the co-operative's records. (5) On giving the report and accounting fully for the administration of the co-operative to the satisfaction of the Registrar, the administrator is released from any further duty to account for 20 the administration of the co-operative other than on account of fraud, dishonesty, negligence or wilful failure to comply with this Act. (6) Before revoking the appointment of an administrator of a co-operative, the Registrar must -- 25 (a) appoint another administrator; or (b) appoint a liquidator; or (c) ensure that directors of the co-operative have been elected in accordance with the rules of the co-operative at a meeting called by the administrator in accordance 30 with those rules; or (d) appoint directors of the co-operative. page 192 [Draft Bill for public comment]

Co-operatives Bill 2006 Merger, transfer of engagements, winding up Part 12 Appointment of administrator Division 5 s. 332 (7) Directors elected or appointed under subsection (6) -- (a) take office on revocation of the administrator's appointment; and (b) in the case of directors appointed under subsection (6), 5 hold office until the next annual general meeting of the co-operative after the revocation of that appointment. 332. Expenses of administration (1) The expenses of and incidental to the conduct of a co-operative's affairs by an administrator are payable from the 10 co-operative's funds. (2) The expenses of conducting a co-operative's affairs include -- (a) if the administrator is not an officer or employee of the public service, remuneration of the administrator at a rate approved by the Registrar; or 15 (b) if the administrator is an officer or employee of the public service, the amount that the Registrar certifies should be paid to the State as repayment of the administrator's remuneration. (3) An amount certified under subsection (2)(b) may be recovered 20 in a court of competent jurisdiction as a debt payable to the State. (4) An administrator has, in relation to the expenses referred to in subsection (1), the same priority on the winding up of a co-operative as the liquidator of the co-operative has. 25 333. Liabilities arising from administration (1) If a co-operative incurs loss because of fraud, dishonesty, negligence or wilful failure to comply with this Act or the rules of the co-operative by an administrator, the administrator is liable for the loss. page 193 [Draft Bill for public comment]

Co-operatives Bill 2006 Part 12 Merger, transfer of engagements, winding up Division 5 Appointment of administrator s. 334 (2) An administrator is not liable for loss that is not a loss to which subsection (1) applies but must account for the loss in a report given under section 331. 334. Additional powers of Registrar 5 (1) If the Registrar appoints directors of a co-operative under section 331, the Registrar may, by written notice given to the co-operative, specify -- (a) a time during which this section is to apply in relation to the co-operative; and 10 (b) the terms on which all or any of the directors hold office; and (c) the rules that are to be the co-operative's rules. (2) While this section applies to a co-operative, the Registrar may -- 15 (a) remove and appoint directors; and (b) vary, revoke or state new terms in place of all or any of the terms specified under subsection (1); and (c) amend all or any of the rules specified under subsection (1). 20 (3) The Registrar may, by written notice given to the co-operative, extend the time for which this section is to apply to a co-operative. (4) A rule specified by the Registrar under this section to be a rule of a co-operative -- 25 (a) must not be altered except in the way set out in this section; and (b) if it is inconsistent with another rule of the co-operative, prevails over the other rule, and the other rule is to the extent of the inconsistency inoperative; and 30 (c) has the same evidentiary value as is by this Act accorded to the co-operative's rules and to copies of them. page 194 [Draft Bill for public comment]

Co-operatives Bill 2006 Merger, transfer of engagements, winding up Part 12 Effect of merger etc. on property, liabilities etc. Division 6 s. 335 335. Stay of proceedings (1) If the Registrar appoints an administrator to conduct a co-operative's affairs, a person must not begin or continue proceedings in a court against the co-operative until the 5 administrator's appointment is revoked except with the leave of the Supreme Court and, if the Supreme Court grants leave, in accordance with any terms that the Supreme Court imposes. (2) A person intending to apply for leave of the Supreme Court under subsection (1) must give the Registrar at least 10 days 10 notice of intention to apply. (3) On the hearing of an application under subsection (1), the Registrar may be represented and may oppose the application. 336. Administrator to report to Registrar On the receipt of a request from the Registrar, the administrator 15 of a co-operative must, without delay, prepare and give to the Registrar a report showing how the administration is being carried out. Division 6 -- Effect of merger etc. on property, liabilities etc. 337. How this Division applies to a merger 20 (1) This Division applies to a merger of co-operatives under this Part. (2) In the application of this Division to a merger -- "new body" means the co-operative that results from the merger; 25 "original body" means each co-operative that is a party to the merger; "relevant day" means the day on which the merged co-operative is registered under this Act. page 195 [Draft Bill for public comment]

Co-operatives Bill 2006 Part 12 Merger, transfer of engagements, winding up Division 6 Effect of merger etc. on property, liabilities etc. s. 338 338. How this Division applies to a transfer of engagements (1) This Division applies to a transfer of the engagements of a co-operative to another co-operative under Division 1. (2) In the application of this Division to a transfer of 5 engagements -- "new body" means the co-operative to which the engagements are transferred; "original body" means the co-operative that transfers its engagements; 10 "relevant day" means the day on which the transfer of engagements takes effect. 339. How this Division applies to a transfer of incorporation (1) This Division applies to a transfer of incorporation under Division 2. 15 (2) In the application of this Division to such a transfer -- "new body" means the corporation that results from the transfer; "original body" means the co-operative that transfers its incorporation; 20 "relevant day" means the day on which the transfer takes effect. 340. Effect of merger etc. on property, liabilities etc. (1) In this section -- "assets" means any legal or equitable estate or interest (whether 25 present or future and whether vested or contingent) in real or personal property of any description (including money), and includes securities, choses in action and documents; "instrument" means an instrument (other than this Act) which creates, modifies or extinguishes rights or liabilities (or 30 would do so if lodged, filed or registered in accordance page 196 [Draft Bill for public comment]

Co-operatives Bill 2006 Merger, transfer of engagements, winding up Part 12 Effect of merger etc. on property, liabilities etc. Division 6 s. 340 with any law), and includes any judgment, order and process of a court; "liabilities" means liabilities, debts and obligations (whether present or future and whether vested or contingent). 5 (2) On and from the relevant day for an event to which this Division applies -- (a) the assets of the original body vest in the new body without the need for a conveyance, transfer, assignment or assurance; and 10 (b) the rights and liabilities of the original body become the rights and liabilities of the new body; and (c) all proceedings by or against the original body that are pending immediately before the relevant day are taken to be proceedings pending by or against the new body; 15 and (d) an act, matter or thing done or omitted to be done by, to or in relation to the original body before the relevant day is, to the extent to which that act, matter or thing has any force or effect, taken to have been done or omitted by, to 20 or in relation to the new body; and (e) a reference in an instrument or document of any kind to the original body is to be read as, or as including, a reference to the new body. (3) The operation of this section must not be regarded -- 25 (a) as a breach of contract or confidence or otherwise as a civil wrong; or (b) as a breach of any contractual provision prohibiting, restricting or regulating the assignment or transfer of assets, rights or liabilities; or 30 (c) as giving rise to a remedy by a party to an instrument, or as causing or permitting the termination of an instrument, because of a change in the beneficial or legal ownership of an asset, right or liability. page 197 [Draft Bill for public comment]

Co-operatives Bill 2006 Part 12 Merger, transfer of engagements, winding up Division 7 Miscellaneous s. 341 Division 7 -- Miscellaneous 341. Grounds for winding up, transfer of engagements, appointment of administrator (1) This section applies to the following actions -- 5 (a) a direction by the Registrar to a co-operative to transfer its engagements under section 309; (b) the appointment of an administrator of a co-operative under Division 5; (c) the winding up of a co-operative on a certificate of the 10 Registrar under section 319. (2) The necessary grounds for taking action to which this section applies exist if the Registrar certifies that -- (a) the number of members is reduced to less than the minimum number of persons allowed under section 66; 15 or (b) the co-operative has not commenced business within one year of registration or has suspended business for more than 6 months; or (c) the registration of the co-operative has been obtained by 20 mistake or fraud; or (d) the co-operative exists for an illegal purpose; or (e) the co-operative has wilfully, and after notice from the Registrar, violated the provisions of this Act or of the rules of the co-operative; or 25 (f) the board of the co-operative has, after notice from the Registrar, failed to ensure that the rules of the co-operative contain active membership provisions in accordance with Part 6; or (g) there are, and have been, for one month immediately 30 before the date of the Registrar's certificate, insufficient directors of the co-operative to form a quorum in accordance with the rules of the co-operative; or page 198 [Draft Bill for public comment]

Co-operatives Bill 2006 Merger, transfer of engagements, winding up Part 12 Miscellaneous Division 7 s. 342 (h) after an inquiry under this Act into the affairs of a co-operative or the working and financial condition of a co-operative, that in the interests of members or creditors of the co-operative or the public the action 5 concerned should be taken. (3) Alternatively, the necessary grounds for winding up a co-operative on a certificate of the Registrar exist if the Registrar certifies that -- (a) the period, if any, fixed for the duration of the 10 co-operative by its rules has ended; or (b) an event, to be specified in the certificate, has occurred on the occurrence of which the regulations or the rules provide that the co-operative is to be wound up. (4) The Registrar must not certify under this section as to any 15 matter unless the matter has been proved to the Registrar's satisfaction. 342. Application of Corporations Act for insolvent co-operatives A co-operative is declared to be an applied Corporations legislation matter for the purposes of the Corporations 20 (Ancillary Provisions) Act 2001 Part 3 in relation to the provisions of the Corporations Act Part 5.7B, subject to the following modifications -- (a) the provisions are to be read as if a co-operative were a company; 25 (b) a reference in the provisions to a provision of the Corporations Act sections 286 to 290, as applied under section 230 of this Act, is to be read with any modifications prescribed by the regulations; (c) any other modifications, within the meaning of the 30 Corporations (Ancillary Provisions) Act 2001 Part 3, that are prescribed by the regulations. page 199 [Draft Bill for public comment]

Co-operatives Bill 2006 Part 13 Arrangements and reconstructions Division 1 General requirements s. 343 Part 13 -- Arrangements and reconstructions Division 1 -- General requirements 343. Requirements for binding compromise or arrangement (1) A compromise or arrangement is binding only if it is approved 5 by order of the Supreme Court after having been agreed to -- (a) if the compromise or arrangement is between the co-operative and any of its creditors, at a court ordered meeting by a majority in number of the creditors concerned who are present and voting (in person or by 10 proxy), being a majority whose debts or claims against the co-operative amount to at least 75% of the total of the debts and claims of all those creditors who are present and voting (in person or by proxy); or (b) if the compromise or arrangement is between the 15 co-operative and any of its members, by the members concerned, by special resolution passed by means of a special postal ballot. (2) The court ordered meeting referred to in subsection (1)(a) is a meeting called in accordance with an order of the Supreme 20 Court under this Part. (3) The Supreme Court may grant its approval to a compromise or arrangement subject to the alterations or conditions it considers appropriate. (4) An order of the Supreme Court approving a compromise or 25 arrangement does not have